IS FLORIDA’S DEATH PENALTY UNCONSTITUTIONAL?
The following are links to news and analysis from Florida’s newspapers. UPDATED July 9 2002
Associated Press: 07/08/02: State High Court Stays Executions of Bottoson, King
Associated Press/Tallahassee Democrat: Death Row on shaky ground
BBC News: Supreme Court to decide fate of killers: Thursday, 30 May, 2002, 09:26 GMT 10:26 UK
Bradenton Herald: Death sentences could be commuted by a high court decision
Florida Times Union editorial: Flawed conclusion
Gainesville Sun Editorial: 01/20/02: ‘Another Day’ Coming
Miami Herald: Appeal imperils Florida death penalty
Miami Herald: Death Penalty Roulett: Serious Flaws Demand State Scrutiny
Orlando Sentinel: Justices’ review of death penalty met with shock
Palm Beach Post: Ariz. case has Florida death sentences in limbo
South Florida Sun-Sentinel: U.S. high court ponders role of judge in death penalty cases
State High Court Stays Executions of Bottoson, King
By Jackie Hallifax
Associated Press Writer
TALLAHASSEE, Fla. (AP) – Two executions scheduled for this week were stayed Monday by the Florida Supreme Court as defense attorneys and others argued that the state’s capital punishment law is unconstitutional.
In a 6-1 order, the court set oral arguments for Aug. 21.
The potential impact of the legal battle ranges from nothing to the death sentences of the 371 people on Florida’s death row being reduced to life, according to Martin McClain, a New York attorney who has handled dozens of Florida capital appeals since 1988.
“This is the biggest thing to come down the pike in a long time,” said McClain, adding that he wasn’t saying it was likely the entire death row population would get a reprieve.
State Sen. Locke Burt, chairman of the Florida Commission on Capital Cases, said the “worst-case scenario” is that death row inmates would have re-sentencing hearings in which they could be condemned again.
But Burt, an Ormond Beach Republican who became a leading legislator on capital punishment issues during 10 years in the state Senate, predicted Florida’s capital punishment law would be upheld.
Word of the indefinite stays came at noon, just six hours before the time set for the execution of Linroy Bottoson. Amos King had been scheduled for execution Wednesday.
Bottoson, 63, was condemned for the 1979 murder of Eatonville postmistress Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and crushed to death by a car.
“He was relieved – again,” said Peter Cannon, a state lawyer representing Bottoson, who came within three hours of execution in February. “He had again finished his last meal.”
King, 47, is condemned for the 1977 murder of Natalie Brady, 68, who was raped, stabbed and beaten in her Tarpon Springs home, which was then set afire before King went back to a work-release prison from which he had slipped away.
Chief Justice Harry Lee Anstead and Justices Leander Shaw, Major Harding, Barbara Pariente, R. Fred Lewis and Peggy Quince supported the order. Justice Charles Wells dissented.
The stay gives the justices time to consider arguments that Florida’s death penalty statute is unconstitutional in the light of a recent U.S. Supreme Court ruling.
In February, the U.S. Supreme Court gave Bottoson a stay because it was considering an appeal by Arizona death row inmate Timothy Ring, a case that had potential to impact Florida’s capital punishment law.
When the U.S. Supreme Court decided the Ring case last month, it ruled that the laws in Arizona and four other states were unconstitutional because judges and not juries decided facts needed to warrant death penalties.
But the U.S. Supreme Court was silent about similar laws in Florida and three other states where juries play limited roles but judges make the final decisions. A few days later, the court lifted the stays granted Bottoson and King.
Lawyers for Bottoson, King and other death row inmates argued that when the U.S. Supreme Court lifted the stays, it did nothing more than send the issue back to the state courts to work out whether the Ring ruling applied to Florida.
Attorneys for the state, however, argued that it meant Florida law was good.
Pariente wrote Monday that “a substantial question is raised as to whether Florida’s capital scheme violates the holding in Ring” that the Sixth Amendment right to a jury requires jurors to decide the factors used to warrant capital sentences.
“Moreover, Ring casts serious doubts on the constitutionality of our scheme to the extent that it permits a judge to override a jury recommendation of a life sentence,” she wrote.
In his dissenting opinion, Wells wrote he found “no legal basis to stay the execution in this state,” noting that the U.S. Supreme Court “has removed any obstacle for this execution to occur.”
Death row inmates were not the only people arguing Ring: In Fort Lauderdale, a man convicted of the fatal bludgeoning of his girlfriend in a capital trial but not yet sentenced also filed an appeal to Florida’s high court. The justices unanimously dismissed it Monday.
Both the Florida Public Defenders Association and the Florida Association of Criminal Defense Attorneys wrote Anstead last week to urge that the court delay this week’s executions in order to give itself time to consider the scope of the Ring ruling in Florida.
The National Association for the Advancement of Colored People wrote Anstead Sunday.
“The issues raised by Ring question the very validity of Florida’s death penalty scheme and could affect not only every inmate on death row but also every individual who may soon be sentenced to death,” wrote Adora Obi Nweze, president of the
Florida State Conference of NAACP Branches.
Abe Bonowitz, director of the Floridians for Alternatives to the Death Penalty, said he was en route to the prison when he got word of the stay.
“It’s always good to be on the way to a killing and turn around,” he said.
This story can be found at:
Posted on Thu, Feb. 07, 2002
Death Row on shaky ground
By Jackie Hallifax
THE ASSOCIATED PRESS
Florida executions have been postponed many times before.
But the cancellation of three in the past three weeks could foreshadow something much bigger: a fatal blow to Florida’s death penalty law and its 372 death sentences.
It’s all up to the U.S. Supreme Court, which delayed two of the three postponed executions.
What’s at issue in the nation’s high court is a constitutional challenge to having judges rather than juries impose death sentences, which Florida and eight other states do.
The justices, who have previously upheld judge-sentencing laws, agreed last month to consider the issue in an appeal by a condemned Arizona prisoner.
“This doesn’t get anybody out of prison,” said Larry Spalding, a Tallahassee attorney who ran the state office that represents Death Row inmates for eight years until 1993.
“The question is: ‘Does it get them off Death Row?’
“The fact that you were able to get five votes for a stay (of execution) is pretty significant.”
Candance Sabella, a Tampa lawyer who oversees capital appeals for the state, doesn’t agree.
“The fact that they have issued stays in our cases doesn’t telegraph anything,” she said Wednesday, arguing it’s far too early to speculate about any risk to either Florida’s death penalty law or its sentences.
But Martin McClain, a New York attorney with several years experience representing Florida Death Row inmates, said the stays indicate the Supreme Court thinks there’s a strong chance that Florida’s law violates the constitution.
“Certainly at the moment, the Florida statute is under a cloud,” McClain said.
Attorneys for the two Death Row inmates who got reprieves from the Supreme Court cited the court’s decision four weeks ago to hear an appeal from Arizona Death Row inmate Timothy Ring.
Possible ripple effect
No one knows whether reprieves for two condemned killers will develop into sentence reductions for 372, not counting hundreds more in the seven other states.
But Death Row attorneys and others say it is a possibility – and that reminds some of the 1972 ruling by the U.S. Supreme Court that imposed a moratorium on executions across the country.
Florida had 96 people on Death Row at the time. Their death sentences were all converted to life in prison.
Former Florida Chief Justice Gerald Kogan, now a private attorney in Miami, said the U.S. Supreme Court hasn’t considered a capital case with the scope of the Ring appeal since the 1972 decision striking capital punishment.
“This will be in my opinion their biggest case since that time,” Kogan said.
Sabella said reading any significance into the Supreme Court’s decision to take Ring is a mistake.
“I don’t know why they took it and nobody else knows why they took it unless it’s one of those nine justices,” she said.
Two weeks after the Supreme Court accepted the Ring appeal, the justices gave Florida Death Row inmate Amos King a reprieve a day before he was to be executed for the 1977 murder of an elderly woman who was raped, stabbed and beaten in her Tarpon Springs home.
King’s attorneys didn’t know how long the reprieve would last; the court’s order was open-ended and could have been dissolved at any point.
But the reprieve lasted day after day – and was still in effect when the state started preparing Linroy Bottoson for execution this week for the 1979 murder of an elderly woman in Eatonville.
Three and a half hours before Bottoson was to die by lethal injection, the court stepped in with another stay. A few hours later, Gov. Jeb Bush called off the third execution, originally set for today, for Robert Trease, an inmate who had dropped his appeals and volunteered for execution.
Attorneys for Death Row inmates now expect the reprieves granted to King and Bottoson to remain in effect until the court decides the Ring case.
If the court agrees with Ring that Arizona’s death penalty law is unconstitutional, Florida’s law – and its 372 death sentences – could still survive because there are differences between the two laws.
However, Todd Scher, a veteran Death Row lawyer in Fort Lauderdale, said he doesn’t think the differences are big enough to draw a distinction between the two. And if the laws are found unconstitutional, Scher doesn’t think any of the sentences imposed under them can stand.
DEATH ROW RULINGS
Some key U.S. Supreme Court decisions on capital punishment affecting Florida:
June 1972 – Furman v. Georgia; the U.S. Supreme Court imposes a moratorium on executions nationally after finding that administration of the death penalty had become too “arbitrary and capricious” in violation of the Constitution’s ban on cruel and unusual punishment.
December 1972 – Florida becomes the first state to pass a new death penalty law in the country.
July 1976 – The U.S. Supreme Court upholds death penalty laws in Florida, Georgia and Texas.
July 1984 – Spaziano v. Florida, the U.S. Supreme Court upholds Florida’s death penalty law, which allows judges to overrule juries recommending life in prison and impose death sentences.
June 1990 – Walton v. Arizona; the U.S. Supreme Court upholds Arizona’s death sentence law, which provides for sentencing by a judge, not a jury, against a challenge that it violates the Sixth Amendment right to a trial by jury.
June 2000 – Apprendi v. New Jersey; the U.S. Supreme Court holds that a judge cannot enhance a sentence under New Jersey’s “hate crime” law by considering facts after conviction. Four dissenting justices warn the decision upsets the 1990 Walton v. Arizona ruling. A fifth, Justice Clarence Thomas, says that question does not have to be settled in the case.
Jan. 11, 2002 – Ring v. Arizona; the U.S. Supreme Court agrees to hear an appeal by Death Row inmate Timothy Ring, challenging Arizona’s death sentencing law on the basis of the June 2000 Apprendi decision. Oral arguments are scheduled for late April.
Jan. 23, 2002 – King v. Florida; the U.S. Supreme Court issues a stay of execution to Death Row inmate Amos King based on its acceptance of the Ring appeal.
Feb. 5, 2002 – Bottoson v. Florida; the U.S. Supreme court issue
s a stay of execution to Linroy Bottoson based on its acceptance of the Ring appeal.
Fate of state’s executions rests with Supreme Court
Fate of state law rests on challenge in U.S. high court
Supreme Court to decide fate of killers <http://news.bbc.co.uk/hi/english/world/americas/
Thursday, 30 May, 2002, 09:26 GMT 10:26 UK
Wuornos says she ‘seriously hates human life’
By Chris Summers
BBC News Online
An American female serial killer has waived her right of appeal and is now awaiting execution. But Aileen Wuornos is one of up to 800 Death row inmates in 9 states whose fates depend on the outcome of a Supreme Court test case.
States affected: Arizona, Idaho, Montana, Colorado, Nebraska, Alabama, Delaware, Indiana, Florida
Wuornos, a prostitute, was sentenced to death for killing several middle-aged men while plying her trade along the interstate highways of central Florida in 1989 and 1990.
The Supreme Court is considering the case of Ring v Arizona, which rests on the fact that 9 of the 38 states which retain the death penalty leave sentencing up to judges, rather than jurors.
In the case of Delaware, Florida, Alabama and Indiana the jurors make a recommendation to the judge.
In the other 5 states – Arizona, Idaho, Montana, Nebraska and Colorado – the jurors do not have any input.
Ring v Arizona was heard in the US Supreme Court in April and the judges will announce their judgement by the end of next month.
It will have a huge impact on capital cases in all 9 states.
If the court rules in favour of Timothy Ring the death sentences could be commuted to life imprisonment.
But if Ring loses then the brakes will come off and there will be a rash of executions.
Ring’s lawyer, Andrew Hurwitz, said the Supreme Court was fairly conservative at the moment but he said: “This is an issue which divides. Trial by jury is something which a lot of conservatives hold dear.”
Up to 800 inmates could be affected if the judges chose to make their judgement retroactive.
Mr Hurwitz said while was hopeful of winning but said: “Even if we do, it’s questionable whether the court would apply it retroactively.”
Abe Bonowitz, of the pressure group Floridians for Alternatives to the Death Penalty, told BBC News Online: “Nobody knows what would happen if the death sentences are quashed.
“They could just be commuted to life. It’s possible that they could back up and give new sentencing hearings but that would be incredibly expensive, and would be impossible in some of the older cases.”
3 Florida death row inmates – Amos King, Linroy Bottoson and Robert Trease – have been given a stay of execution pending the outcome of Ring v Arizona.
Wuornos waived her final appeal in April and is now waiting for Florida’s Governor Jeb Bush – brother of President George W Bush – to sign her execution warrant.
Wuornos, 45, is what is known in the death penalty business as a “volunteer”.
She is on death row in Florida State Prison in Starke, near Gainesville. [Correction: Female death row prisoners are held in the women’s prison in Ft. Lauderdale]
Mr Bonowitz said his group was opposed to the execution of all those on death row, including “volunteers”.
“If there is somebody who wants to kill themselves give them back their shoelaces but don’t let [correction – should say “make”] me pull the switch,” he said.
Mr Bonowitz said: “It is an election year. So if Ring’s case is denied and the status quo stands you can expect half a dozen executions (in Florida) in August and September, including Wuornos.”
Florida has only executed 1 woman since 1848 – Judy Buenoano, who died in the electric chair in March 1998.
Wuornos claimed at her trial she had killed all 8 of her victims in self-defence after they assaulted her but later admitted she lied. Her only motive was robbery and a loathing of men.
Dec 1989: Richard Mallory
May 1990: Unknown male
Jun 1990: David Spears
Jun 1990: Charles Carskaddon
Jun 1990: Peter Siems
Jul 1990: Troy Burress
Sep 1990: Dick Humphreys
Nov 1990: Walter Antonio
Sacking her lawyers and waiving her right to appeal, she wrote: “There are 6 cases which had all been unanimously decided for in death, and of which I firmly agreed in with their final decision, since I’m one who seriously hates human life and would kill again.”
But the Supreme Court’s ruling will have no effect on states like Texas, where executions continue apace.
On Tuesday Napoleon Beazley was executed at the state prison in Huntsville.
Beazley’s case had caused uproar among human rights groups because he was only 17 when he committed the murder.
(source: BBC News)
Abraham J. Bonowitz
Floridians for Alternatives to the Death Penalty (FADP)
Floridians for Alternatives to the Death Penalty works for restorative
justice in the form of effective alternatives to the death penalty. It
does so by
# supporting and coordinating the work of organizations and individuals
# educating and energizing the general public and state legislators
# supporting the many persons affected by capital crime and punishment
# advocating specific legislative improvements
PS: For fiscal & legal purposes, FADP is a project of CUADP
<http://www.cuadp.org>. Please call 800-973-6548 or e-mail
<[email protected]> to get involved. Checkbook activism helps too!
Make checks to FADP and send to:
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Florida inmates’ fate rests on ruling
Death sentences could be commuted by a high court decision.
More than 370 inmates on Florida Death Row could be affected by the U.S. Supreme Court’s decision regarding the constitutionality of an Arizona death penalty law.
“The Supreme Court decision could have broad-ranging impact on all Florida Death Row cases,” said Randy Berg, executive director of the Florida Justice Institute, a not-for-profit public-interest law firm that advocates for inmate rights.
“All death sentences could be commuted to life imprisonment,” Berg said. “This is an effective stay on all executions in Florida for the moment.”
The issue in the U.S. Supreme Court is whether it’s constitutional for a judge to have the final say in a death penalty case.
“In Florida, our jury’s involvement (or recommendation) is merely advisory,” Berg said. “The judge is the ultimate authority.”
The Supreme Court’s decision to review the Arizona capital punishment law is significant enough to have halted three executions in Florida – that of Robert Trease, Linroy Bottoson, and Amos King.
The Capital Collateral Regional Council, a state-funded agency that assigns defense attorneys to Death Row inmates and does all death row appeals, is not slowing down on any of its cases, and officials there said they are eagerly awaiting the Supreme Court’s ruling.
“Though our cases are going on as usual, we are in anticipation of a potentially significant decision,” said attorney Todd Scher, the litigation director of the CCRC. “It could be like the sweeping 1972 Supreme Court decision that deemed the way states used the death penalty was unconstitutional and forced Florida to rewrite its capital punishment laws.”
But legislators and Death Row prosecutors say it is too early to make any predictions about the effect an Arizona case could have on Florida law.
“It’s an assumption that whatever the Supreme Court decides in Arizona would affect Florida,” said Carolyn Snurkowski, who oversees criminal appeals for Florida Attorney General Bob Butterworth. “I can’t say one inmate will be affected or 370 inmates will be affected because I don’t know what’s going to happen.”
Snurkowski said the Supreme Court is scheduled to hear arguments in the Arizona case in late April and is expected to rule in late June. She also said that cases and procedures are “status quo” in her office.
“I still have death penalty cases in various stages of litigation,” Snurkowski said, adding that only the three Florida cases of Trease, Bottoson, and King were affected. Florida Governor Jeb Bush’s office confirmed that there are no other pending death warrants awaiting Bush’s signature. A spokeswoman for the governor said Bush thinks the death penalty “is an appropriate punishment for criminals who commit heinous crimes.”
Sen. Victor Crist, R-Tampa, chairman of the Senate Criminal Justice Committee, doesn’t believe Arizona law can apply to Florida law.
“The idea that this will affect Florida Death Row cases is wishful thinking on the part of death-penalty opponents,” Crist said.
In Florida, inmates sentenced to die spend an average of 16 years on Death Row and have had ample opportunities for appeals.
“We have many more checks and balances than Arizona,” he said.
Crist also said he had confidence in Florida’s law naming the judge as the last person to make the life-or-death decision.
“I’d be surprised if the Supreme Court found that unconstitutional,” Crist said. “It’s smarter to have the judge doing it because he’s making a decision based on law. The jury could get emotionally involved.”
On Tuesday, Bush called off Trease’s execution after the Supreme Court gave Bottoson – another Florida Death Row inmate – a reprieve three hours before Bottoson was to be executed.
Bush issued an executive order Wednesday, explaining in a statement that he felt it was necessary to give Trease a reprieve because of “the matters pending before the Supreme Court and the fact that Death Row inmate Robert Trease is not represented by counsel.” Trease had fired his attorney and given up all appeals in spring 2001.
Prosecutors in Trease’s trial said that during a robbery attempt, Trease shot Edenson in the head, then cut his throat so severely he nearly decapitated him. Trease, who received the death sentence in January 1997, decided not to fight the death penalty.
Florida Times Union editorial
Wednesday, February 13, 2002
Capital punishment critics cite a Columbia University study that claims Florida is among the nation’s leaders in sending innocent people to Death Row. Actually, it seems to show that the more a state imposes the death penalty, the more likely some of those sentences will be overturned.
The more anything is done — whether it’s trying capital murder cases or walking across a busy street — the more likely there will be a mistake eventually.
Few death sentences are overturned because the condemned was found to be innocent, however. It’s almost always because the trial was flawed. There is no proof that any innocent person has been executed in Florida.
Critics insist it could happen, and the only way to prevent it would be to replace the death penalty with life in prison — a sentence they say would adequately protect society.
But when a killer is serving a life sentence, and the state doesn’t have a death penalty, there is nothing to deter him from killing guards or other inmates.
Also, some escape. Two men serving life sentences for killing a 16-year-old cheerleader in 1996 broke out of a Texas jail late last month, for example.
Then there was Jack Henry Abbott, who killed another inmate while in prison for armed robbery. Abbott began corresponding with author Norman Mailer while in prison and Mailer, impressed by Abbott’s writing, successfully pushed for his parole. Six weeks after his release, Abbott stabbed a New York waiter to death.
Abbott, coincidentally, imposed the death penalty on himself by committing suicide in his cell the day before the Columbia study was released.
Concern with the rights of the accused needs to be balanced against public safety. If there is no doubt about guilt in a capital murder case, there is only one way to make certain he doesn’t take any more lives.
Sunday, January 20, 2002
Sun Editorial: ‘Another day’ coming
When Roberto Melendez was released earlier this month after s
pending 17 years on death row for a crime he apparently did not commit, capital punishment foes called on Gov. Jeb Bush to declare a moratorium on executions in Florida pending a review of the fairness of the state’s death statutes.
Melendez, after all, is one of 24 inmates to be freed in Florida because later review cast doubt upon their guilt. The state’s track record on executions is such that Florida has uncovered about one “mistake” for every two persons its executed. That hardly inspires confidence in the infallibility of Florida’s death machinery.
Gov. Bush ignored calls for a moratorium, displaying a blind faith in the death penalty that a fellow Republican governor, George Ryan, of Illinois, does not share. Ryan has already declared a moratorium in his state precisely because of faulty convictions like Melendez’.
Now comes yet another incentive for Bush to at least temporarily disconnect the death machinery. Last week, the U.S. Supreme Court announced that it would review an Arizona death case that could have, in the words of Supreme Court Justice Sandra Day O’Connor, “colossal” implications for Florida and eight other death penalty states. Depending on how the court resolves Ring vs. Arizona, the death sentences of 385 inmates on Florida’s death row could be placed in doubt.
Florida and Arizona are two of just nine states that charge judges, not juries, with determining whether sufficient “aggravating” factors exist to justify the death penalty in capital cases. Indeed, in Florida, juries play no role at all in deciding whether or not a killer, once convicted, will die. Most death penalty states, and the federal government, leave it up to juries to determine whether enough aggravating factors – whether, for instance, a murder is deemed to be particularly cruel or heinous – exist to justify condemnation.
This is not simply a legal technicality. In an earlier case from New Jersey, the Supreme Court has already held that allowing judges rather than juries to determine whether sufficient motivation exists to upgrade an ordinary crime to a “hate” crime – with its harsher punishments – is a violation of a defendant’s due process rights. Under the constitution, the court held in the New Jersey case, a jury must make such a determination beyond a reasonable doubt.
Although death penalty cases were not immediately impacted by the court’s Apprendi vs. New Jersey decision, Justice Clarence Thomas at the time wrote that making that determination “is a question for another day.” In accepting Ring vs. Arizona, the court is signaling that the other day has arrived.
Is it conceivable that the high court will say that, under the constitution, juries must make the crucial determination in regard to hate crimes, but do not necessarily have to do so when the convicted’s life may be forfeit? It doesn’t seem likely.
Indeed, commenting on an earlier death case that seemed to run contrary to Apprendi vs. New Jersey, Justice O’Connor wrote, “If a state can remove from the jury a factual determination that makes the difference between life and death, it is inconceivable why a state cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed.”
The court’s ruling is due before its summer recess. Florida has already scheduled three executions for early February alone. Since there is at least an even chance that court’s logic in Apprendi vs. New Jersey will extend to Ring vs. Arizona, prudence alone would seem to dictate that the Bush Administration hold off on any more executions.
A crucial component of Florida’s capital punishment process is undergoing scrutiny by the U.S. Supreme Court. This is no time to accelerate the state’s machinery of death.
An Arizona death penalty case could have profound ramifications for nine states — including Florida, with its 372 Death Row inmates — and might lead to major changes in how sentences in first-degree murder trials are meted out.
Already within the last two weeks, the U.S. Supreme Court has postponed two Florida executions, the latest one Tuesday.
At the root of the issue: Ring v. Arizona, a 1994 trial of an armored van robber who was convicted of murder by a jury and sentenced to die by a judge.
If the high court rules in favor of the convicted Phoenix murderer, Timothy Ring, then all 795 Death Row inmates in those nine states could have their sentences commuted to life or they might get new sentencing hearings. State legislators might also have to change their death sentencing laws.
In the simplest terms, the Supreme Court must decide whether a state jury or judge should decide if defendants found guilty of first-degree murder should face a life sentence or the death penalty.
In Arizona, the trial judge makes that call while considering mitigating and aggravating circumstances, without input from a jury. In Florida, the judge also has final say, but the jury beforehand makes a recommendation.
”I think they will want to hit this one head on,” said Miami lawyer Gerald Kogan, a former Florida Supreme Court justice who has openly questioned the effectiveness of the death penalty in Florida. “They have taken this case to make a definite statement — should that authority lie with the jury, or should it lie with the trial judge?”
Attorneys representing Death Row inmates are watching the case anxiously.
”If Ring loses, we’re in the status quo,” said Todd Scher, a Fort Lauderdale lawyer with the Capital Collateral Regional Council, a state agency that handles death sentence appeals. “If Ring prevails, there is the possibility of flat-out commutations to life because the statute is unconstitutional.”
The Supreme Court has accepted the Ring v. Arizona case for oral arguments in April because it raises constitutional questions about the process of imposing the death penalty in that state. The constitutionality of the death penalty, which exists in 38 states, is not at stake, said Phoenix attorney John Stookey, who filed the Ring petition with the Supreme Court.
In addition to Arizona and Florida, the other states affected by the high court case are Idaho, Montana, Alabama, Indiana, Delaware, Colorado and Nebraska. THREE WERE CHARGED
Ring was charged with participating along with two others in the robbery of an armored van in Phoenix. A jury found him guilty of first-degree murder because the van driver was shot and killed during the robbery. Ring’s maximum statutory penalty, based on the jury’s verdict, was life imprisonment.
But the presiding judge conducted a separa
te sentencing hearing to determine whether certain facts justified imposing the death penalty. At that hearing, an accomplice with a plea bargain testified that Ring led the planning of the robbery, shot the van’s driver and later asked to be ”congratulated” on his shot. The accomplice had not testified at Ring’s trial, however.
After the sentencing hearing, the judge imposed the death penalty, saying Ring masterminded the robbery and killed the driver for the money in the van. The judge also concluded that Ring acted in a ”heinous” and ”depraved” manner when he allegedly asked to be congratulated on his shot.
In papers filed with the Supreme Court, the Ring case spotlights two earlier high court decisions that are potentially in conflict.
In Walton v. Arizona, a split Supreme Court found in 1990 that a trial judge’s sole responsibility to determine a convicted murderer’s death sentence does not violate the defendant’s due process right to a trial.
A decade later, the 5-4 high court reached a different conclusion in a nondeath-penalty shooting case, Apprendi v. New Jersey. The majority ruled that the facts used to increase the defendant’s sentence by a judge should have been presented to a jury at trial — and proved beyond a reasonable doubt.
While the defendant was subject to a 10-year sentence in the racially tainted shooting, the judge made it 12 years in the sentencing hearing after finding that it was a hate crime — a factor never considered by jurors.
In 2000, Justices John Paul Stevens and concurring Justice Clarence Thomas distinguished Apprendi from the earlier Walton case by saying trial judges can make factual determinations that result in the death penalty.
But Justice Sandra Day O’Connor, who dissented in Apprendi, said the distinction was ”baffling.” She wrote: ”If the court does not intend to overrule Walton, one would be hard-pressed to tell from the opinion it issues” in Apprendi.
CHANCE TO CLARIFY
That apparent confusion over those two earlier rulings could persuade the Supreme Court to clarify its stand with the Ring v. Arizona case.
”There’s a conflict,” said Raag Singhal, a Fort Lauderdale attorney who handles Death Row cases. Singhal, like others interviewed for this story, said the vote will probably be close.
Singhal said the Ring case could turn out to be like the Supreme Court’s 1972 landmark decision in Furman v. Georgia, which found that capital punishment was unconstitutional because of the disparity in how it was meted out based on race and other factors. That ruling led to the commutation of all Death Row prisoners.
”Their decision [in Ring] would have a tremendous impact in Florida,” he said. “If the sentencing scheme is unconstitutional, then everyone on Death Row has been placed there because of an unconstitutional statute.”
Because of the Ring case, Gov. Jeb Bush, an advocate of the death penalty, signed an order Wednesday delaying today’s planned execution of Robert Trease.
The justices granted a reprieve Tuesday to Florida Death Row inmate Linroy Bottoson just three hours before he was scheduled to die.
The Miami Herald: February 13, 2002
Death Penalty Roulett: Serious Flaws Demand State Scrutiny
Miami Herald editorial Wednesday, February 13, 2002
Florida’s death-penalty system is dangerously flawed. In just the past year, Floridians have seen a number of inmates exonerated after they had spent years on Death Row.
In those cases, evidence barred from trial has come to light, overzealous police have been found to coerce confessions, and DNA testing has been used to free convicts. In the past 29 years, 22 people have been exonerated — more than in any other state.
It is a shameful distinction that not even the most ardent death-penalty supporter should accept. It is a distinction, too, that should compel Gov. Jeb Bush to order a moratorium on executions.
The death penalty needs a top-to-bottom review and subsequent reforms that will root out inequities and errors that mar what should be a flawless process.
Florida’s system is riddled with both faults, according to researchers based at Columbia University Law School. Their 23-year survey of death-sentence reversals found that Florida leads the nation in wrongful convictions. Defendants who aren’t guilty are most at risk of being convicted and sentenced to death here than in any other state.
It is a frightening revelation. What’s wrong with the system? Plenty, according to the study:
Florida engages in a ”heavy and indiscriminate use” of the death penalty. Because the state imposes the death penalty in such a broad range of cases, not just the ”worst of the worst,” there were more errors here.
Miami-Dade and Broward counties were among the highest-ranked counties in imposing the penalty.
In counties with high-crime rates and large black populations, there are higher error rates in capital cases.
Judges who must run for office may be pressured by politics to impose death sentences.
Poorly performing law-enforcement agencies or departments increase the likelihood of error.
The research team developed useful recommendations for reform, including barring the death penalty for juveniles and the mentally ill, insulating judges from political pressures and finding ways to attract competent capital-defense counsel for poor inmates. These should be the starting point for state review.
In imposing a moratorium, Gov. Bush would be following the good example of Gov. George Ryan of Illinois, who, in February 2000, was alarmed at the number of Death Row inmates who were exonerated there.
The mounting evidence damning Florida’s system cannot be ignored. When the state takes a life, it must not make a mistake.
Justices’ review of death penalty met with shock
By Susan Clary Sentinel Staff Writer
February 7, 2002
The architects of Florida’s death-penalty law were caught by surprise when the U.S. Supreme Court stalled executions in the state Tuesday while the justices determine if laws here and in eight other states are unconstitutional.
Florida and the other
states affected — Arizona, Alabama, Colorado, Delaware, Idaho, Indiana, Montana and Nebraska — allow a judge, rather than a jury, to decide if a criminal is put to death.
What the justices do with a case out of Arizona potentially could affect more than 800 inmates sentenced to die. Nearly half of those convicts — 372 — are on Florida’s death row in Starke.
After the Supreme Court struck down executions nationwide in 1972, states began adopting new laws tailored to satisfy the court’s constitutional objections to the death penalty. New laws
in Florida were upheld by the Florida and U.S. supreme courts in 1976.
Since 1972, Florida judges have overruled 167 jury decisions to sentence defendants to life in prison and instead ordered defendants to death. The Florida Supreme Court has overturned so many of those cases on appeal that most judges no longer overrule a jury, though the law allows it.
“We tried to set up a statute that would be as fair and error-free as possible,” said Judge Robert Shevin, of the 3rd District Court of Appeal in Miami, who was the state’s attorney general at the time and helped to craft the laws. “We were able to take the position strongly by having the participation of the jury and judge and would not result in innocent people being executed.
“Back then, the [U.S.] Supreme Court embraced our statute.”
Ray Marky, the former assistant attorney general who presented the state’s current death-penalty statutes to the state and federal courts for approval, said the Tuesday move caught him by surprise.
“I’m really confused by all this,” Marky said. “Perhaps the U.S. Supreme Court does not want to let anyone be executed in those states because it would telegraph what they are going to do in the Arizona case before they have even heard it.”
Arguments set for April
At issue is whether the Arizona law, which allows a judge alone to decide sentencing in a capital murder case, is a violation of the Sixth Amendment, which guarantees every citizen the right to a trial by jury. The court will hear arguments in the case in April; it’s not known when a ruling will come.
The death penalty exists in 38 states. Of the nine states in question, Arizona, Idaho and Montana have systems in which the judge unilaterally decides the sentence. In Florida, Alabama, Indiana and Delaware, juries make recommendations on life or death in a separate proceeding, but a judge makes the final call. In Nebraska and Colorado, a panel of judges imposes the sentence.
Orange-Osceola State Attorney Lawson Lamar said he thinks the U.S. Supreme Court is simply taking precautions in Florida while the justices decide the Arizona case.
“I think it’s purely a technical issue and this is just a delay,” Lamar said.
Judge acting as jury?
The U.S. Supreme Court decided to take the Arizona case as a follow-up to a 2000 decision in which the court overturned a hate-crime sentence imposed on a New Jersey man. The judge added time to the man’s sentence after trial by invoking a state law that allows judges to increase prison time for hate crimes.
The Supreme Court found that this amounted to the judge acting as jury. In her dissent, Justice Sandra Day O’Connor foresaw a spillover into the death-penalty arena. Since then, scores of federal inmates have claimed that their sentences should be overturned in light of the New Jersey case.
That case “has just swept the country,” said Don West, an Orlando criminal-defense attorney who has handled dozens of capital murder cases.
Florida may join case
Florida Attorney General Bob Butterworth may try to join Arizona in the Supreme Court case to try to maintain the current death-penalty system, spokesman Joe Bizzaro said.
“We are considering [it], but no decision has been reached,” Bizzaro said Wednesday. “Obviously, we would be protecting the state’s interest to permit the carrying out of capital punishment.”
The U.S. Supreme Court stayed the execution of Linroy Bottoson — sentenced to death for murdering Eatonville postmaster Catherine Alexander in 1979 — just three hours before he was scheduled to die Tuesday by lethal injection. Hours later, Gov. Jeb Bush announced he would halt today’s scheduled execution of Robert Trease, 48, a Sarasota killer who doesn’t have an attorney and has asked to die.
A Bush spokeswoman said the governor is taking a wait-and-see attitude toward the Supreme Court decision and declined to speculate on what the governor might do with other cases.
“We do not have any other pending death warrants in front of us to make that decision,” spokeswoman Lisa Gates said. “This is just a stay for Trease.”
Bush will ‘wait and see’
Gates said the governor’s legal staff has discussed the Arizona case with the attorney general, but Gates declined to say if the governor would push a particular legal strategy.
“He thinks we should wait and see what the Supreme Court does,” Gates said. “They [the justices] want more time to look at this. That’s why he issued those stays.”
Assistant Deputy Attorney General Carolyn Snurkowski, who oversees all death-row appeals for the state, said the Supreme Court ruling could end up meaning only a temporary delay.
“This is only staying this case so the court can look at the case more closely,” she said. “I don’t know what’s going to happen beyond that point.”
Bob Mahlburg and Katy Miller of the Sentinel staff contributed to this report. Susan Clary can be reached at [email protected] or 407-420-5448.
Copyright © 2002, Orlando Sentinel
Ariz. case has Florida death sentences in limbo
By Mary Ellen Klas, Palm Beach Post Capital Bureau
Thursday, February 7, 2002
TALLAHASSEE — Florida’s death penalty could be at a major crossroads as the U.S. Supreme Court considers an Arizona case that has the potential to eliminate death sentences for many of the 372 condemned killers awaiting execution in Florida.
The high court Tuesday halted the Florida execution of Linroy Bottoson three hours before he was scheduled to die by lethal injection for the 1979 kidnap and murder of Catherine Alexander, 74, the first postmaster of Eatonville, near Orlando.
Two weeks ago, the high court blocked the execution of another convicted killer, Amos King. Wednesday, the legal limbo caused by the court’s review prompted Gov. Jeb Bush to make the unusual decision to postpone Thursday’s scheduled execution of Robert Trease, 48.
The court action confirms speculation by many death penalty opponents that the U.S. Supreme Court wants to halt executions in nine states until it rules on the Arizona case. There are 654
inmates on Death Row in Florida and the eight other states. In Florida, no other executions are scheduled besides the three postponed ones.
At issue is the constitutionality of an Arizona law that allows judges to overrule a jury recommendation and impose the death penalty, but the case has broader implications.
Florida and Arizona are among nine states that allow judges to go beyond a jury’s recommended sentence and impose death. Statistics compiled by Michael Radelat, a sociology professor at the University of Colorado and an authority on capital punishment in Florida, show that since 1972, when the judicial override was enacted, 166 death sentences have been imposed in Florida by judges after a jury recommended life.
Death penalty proponents counter that 90 percent of those sentences are overturned by the Florida Supreme Court.
“Trial judges don’t do that anymore because they kept getting reversed all the time,” said Sen. Locke Burt, R-Ormond Beach, chairman of the Senate Judiciary Committee. But, he conceded, if the Supreme Court rules Arizona’s law unconstitutional, Florida’s law could also be voided. Although Burt believes that will affect “very few inmates,” death penalty opponents say it will leave the fate of all 372 people on Death Row uncertain.
“It is possible, by one swoop of the pen, for the U.S. Supreme Court to throw out the death sentence of everybody on Death Row, make eligible for new sentencing and leave it up to the state to see if they want to have new hearings or give them all life in prison,” Radelat said.
Sentence reductions possible
No one knows whether reprieves for three condemned Florida killers will develop into sentence reductions for the others on Death Row, but Death Row attorneys and others say it is a possibility — and that reminds some of the 1972 ruling by the U.S. Supreme Court that imposed a moratorium on executions across the country.
Florida had 96 people on Death Row at the time. Their death sentences were all converted to life in prison.
Former Florida Chief Justice Gerald Kogan, now a private attorney in Miami, said the U.S. Supreme Court hasn’t considered a capital case with the scope of the Arizona appeal since the 1972 decision striking capital punishment.
“This will be, in my opinion, their biggest case since that time,” Kogan said.
The death sentencing system was introduced in Florida in 1972 after the moratorium. Before that, state law required a unanimous jury to impose a death sentence.
“This is a real opportunity for Florida to reexamine how the death penalty system is working, especially at a time when they are looking for ways to save money,” Radelat said.
If the high court declares Florida’s sentencing system unconstitutional, it will be the second time in recent years the state will be forced the change its death penalty system. Two years ago, Florida switched from the electric chair to lethal injection after several botched electrocutions brought legal challenges from death penalty opponents to call the chair cruel and unusual punishment.
Death penalty proponents say Florida’s system is so different from Arizona’s that it is “wishful thinking” for opponents to claim the high court will reject the state’s system.
“Unlike Arizona, we provide many more safeguards than they do,” said state Sen. Victor Crist, R-Tampa, chairman of the Senate Criminal Justice Committee. He cited the state program that offers free legal representation to inmates and the often lengthy appeals process that follows.
“In Florida, unlike Arizona, an inmate who is sentenced to die will live on Death Row for an average of 16 years and, during that time, have an average of 12 more judicial appeals,” he said. “So, the sentencing judge ain’t the last person he sees.”
Crist conceded that, if the high court does throw out Florida’s law that allows a judge to impose a death sentence, the legislature will have to respond.
“I can’t say what we’ll do but we’ll act and we’ll act quickly,” he said.
Meanwhile, officials in the attorney general’s office say the high court’s review won’t stop them from challenging the dozens of appeals from Death Row inmates contesting their sentences, but death penalty opponents believe it will force the governor to slow down the number of death warrants he signs.
“I we can’t say that for sure but I don’t think the governor is going to want to waste money on moving prisoners and putting them on death watch to wait for the court,” said Marty McClain, a lawyer who represents Death Row inmates.
“The next questions is, what do you do with those people? You can’t answer that until you know what the U.S. Supreme Court says.”
U.S. high court ponders role of judge in death penalty cases
By Terri Somers
February 7, 2002
Is it unconstitutional to have a judge, rather than a jury, decide whether someone should receive the death penalty? That’s the question put before the U.S. Supreme Court by lawyers opposing an Arizona law.
When the nation’s highest court stopped two Florida executions in the last three weeks, and Gov. Jeb Bush stopped a third on Tuesday, they acknowledged the outcome of the Arizona case could have a sweeping impact in eight other states, including Florida, legal experts said.
In the nine states, a total of 870 people are on death rows because judges put them there.
“I think the court sees it as a systematic challenge that could effect not one person, but a class of people in several different states,” said Todd Scher, a Fort Lauderdale lawyer who represents Death Row inmates in their appeals.
The nine states, out of the 38 that have the death penalty, allow a judge to make the ultimate decision of whether someone should be executed. In Florida, a jury makes a recommendation on sentence, but the judge makes the final call.
Legal experts do not think the recent halting of executions should be translated as a signal the court has already made up its mind on the Arizona case.
Nor should it signal a policy reversal by Gov. Bush, a strong proponent of the death penalty.
“I think what they are saying is that the law is in a state of flux right now and while it is in a state of flux, certainly nothing is served by rushing to execution,” said Randy Berg, a lawyer with the Florida Justice Institute in Miami.
The Arizona and Florida death penalties, with their judicial vetoes, have been challenged before in the nation’s highest court. The court upheld Arizona’s law in 1990, then Florida’s.
Florida’s law was written to allow a judge to control a runaway jury by reducing an unsubstantiated death sentence to life, said Raag Singhal, a Fort Lauderdale lawyer who represents Death Row clients. But it has
not always been used that way, Singhal said.
In August 1999, a jury recommended Singhal’s client Jeffrey Lee Weaver receive life in prison for killing a police officer during a foot chase. Broward Circuit Judge Mark Speiser chose instead to sentence Weaver to death.
It was the third time Speiser overrode a jury’s recommendation, Singhal said. And it was the last recommendation by a Florida jury that was upgraded to life by a judge, said Singhal, who is representing Weaver on his appeal.
A U.S. Supreme Court case paved the way for this death penalty challenge. In that case, the court ruled in 2000 that New Jersey’s hate-crime law was unconstitutional because it allowed the judge to decide whether a defendant’s sentence should be heightened because of the nature of the crime. The court said a jury should make that decision.
If the court applies the same reasoning to agree that Arizona’s death penalty law is unconstitutional, Florida’s law — and its entire 372-person Death Row — could still survive because there are differences between the two laws.
However, Scher said, he doesn’t think the differences are big enough to draw a distinction between the two.
Larry Spalding, a Tallahassee lawyer who once ran the state agency for death penalty appeals, said he thinks that even if the Supreme Court rules against Florida’s death penalty law, it will try to salvage the death sentences if it can — maybe by allowing resentencings.
Scher said he thinks if the laws are found unconstitutional, none of the sentences imposed under them can stand.
He and other death row attorneys point to a 1972 Supreme Court decision that placed a moratorium on executions. From that they conclude it is a possible that if the court throws out the Arizona law, all 870 people on death rows in the nine states would see their death sentences commuted to life.
Florida had 96 people on Death Row in 1972, when the death penalty moratorium took effect. Their death sentences were all converted to life in prison.
Former Florida Chief Justice Gerald Kogan, now a private attorney in Miami, said the U.S. Supreme Court hasn’t considered a capital case with the scope of this Arizona appeal since the 1972 decision.
“This will be, in my opinion, their biggest case since that time,” Kogan said.
On one thing the lawyers seem to agree: This case is one more that questions the fairness of the death penalty.
“There’s the litigation over whether Florida’s electric chair is cruel and unusual punishment; the issues that DNA raises regarding the validity of convictions, and these technical legal issues about who decides whether or not someone should be sentenced to death,” said Fort Lauderdale lawyer Bruce Rogow, who teaches constitutional law at Nova Southeastern University Law School.
“All of these issues,” he said, “have made sensitive and thoughtful people uneasy about executions.”
Terri Somers can be reached at [email protected] or 954-356-4849.
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