In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Florida Supreme Court suspends death penalty

Florida's death chamber
Florida's death chamber

For the 2nd time this year, a court has ruled that Florida's death penalty statute is unconstitutional. 

This time, it was the Florida Supreme Court, handing down a pair of historic rulings on Oct. 14 that shifted Florida into the legal mainstream and are expected to cut the number of people sent to death row. 

Florida has not executed anyone since Jan. 7 because of uncertainty about its death penalty, and Friday's rulings are expected to extend that moratorium indefinitely. 

'A clear outlier' 

In the 1st case, the Florida high court threw out the death penalty given to a Pensacola killer, Timothy Lee Hurst, because jurors had not unanimously recommended it. Their vote was 7-5. 

In the 2nd case, the court ruled that the Florida Legislature botched its rewrite of the statute this year. The problem: The new law required just 10 of 12 jurors to agree on a death sentence. 

"The Florida Supreme Court said today that is has to be unanimous under Florida law," said Stephen K. Harper, a death penalty specialist at Florida International University College of Law. 

Until the Oct. 14 rulings, Florida was 1 of 3 states that did not require a unanimous jury recommendation in death penalty cases. 

The high court said that made the state "a clear outlier." 

Called historic 

As a consequence of last Friday's rulings, Florida currently has no death penalty. 

Former Circuit Judge O.H. "Bill" Eaton Jr. called the rulings historic, pointing out that for the 1st time in 44 years, no inmates will be sent to Florida's death row without all 12 members of a jury agreeing that that is the right punishment. 

In the Hurst case, the high court ruled that the defendant must be given a new sentencing hearing. 

Still unclear, though, is what will happen to the other inmates on Florida's death row and to murderers given the death penalty under the new statute, which was signed into law March 7 by Gov. Rick Scott. 

Blow to Bondi 

Some attorneys had urged the court to automatically convert all Florida death sentences to life in prison, but the recent opinions did not order that. 

The new rulings were a blow not just to the Florida Legislature but also to Attorney General Pam Bondi, who had defended the old and new laws. 

Both of the Oct. 14 rulings were a consequence of an opinion handed down Jan. 12 by the U.S. Supreme Court. It ruled that Florida's death penalty was unconstitutional because it required a judge - not a jury - to decide whether a defendant should be put to death. 

Bondi had argued that the error was harmless, but in that January ruling, Justice Sonia Sotomayor wrote that the court disagreed but left it to the Florida Supreme Court to hash out who, if anyone, was harmed. 

Huge backlog? 

The Florida Supreme Court answered that question last Friday, but only in part. Hurst was harmed, the court wrote, so he should be resentenced. 

It was silent about all other death penalty cases. 

Belvin Perry Jr., former chief judge of the Orange-Osceola circuit, predicted that all 385 death-row inmates would now file paperwork, arguing that they, too, were harmed. 

It might mean a huge backlog for the Florida Supreme Court and for trial courts, he said. 

But Harper and Eaton predicted the rulings could apply to far fewer cases, primarily those with active appeals and those that have not gone to trial. 

All 3 legal experts faulted members of the Florida Legislature. Eaton said they had been warned repeatedly since 2000 that they needed to rewrite the statute to require unanimous jury recommendations. 

Opposed by speaker 

The next speaker of the Florida House, Richard Corcoran, attacked Friday's ruling as "a miscarriage of justice ... and dangerous for our state." 

"We will take a close look at today's rulings and consider our options going forward," he said in a statement. 

A spokeswoman for Scott wrote in an email that his office was reviewing the rulings. That was the same message from the office of outgoing Florida Senate President Andy Gardiner and his successor, Joe Negron. 

A spokesman for Bondi wrote the same thing, adding, "In the meantime Florida juries must make unanimous decisions in capital cases as to the appropriateness of the death penalty." 

Source: Florida Courier, October 21, 2016

Bondi's office looks for clarity on death penalty

Florida Supreme Court: Jury must unanimously agree on death penalty

Attorney General Pam Bondi has asked the Florida Supreme Court to clarify a ruling last week that struck down a portion of the state's death-penalty law, arguing that failing to do so "will only generate confusion."

In a pair of opinions issued last Friday, the court found that a statute, passed in March in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida, was unconstitutional "because it requires that only 10 jurors recommend death as opposed to the constitutionally required unanimous, 12-member jury."

Bondi's request for clarification came in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son. An appellate court had asked the Florida Supreme Court to decide whether the law passed in March applied to cases that were already under way.

In last Friday's 5-2 decision in the Perry case, the court said that the law was unconstitutional because it did not require unanimous jury recommendations and "cannot be applied to pending prosecutions."

The state contends that death penalty prosecutions can continue without a change in the law, so long as trial courts require unanimous jury recommendations to comply with last week's ruling.

But the Supreme Court majority did not address the issue of "severability," which would allow portions of the law that are not deficient to remain intact, Senior Assistant Attorney General Carol Dittmar wrote in the 11-page request filed Thursday.

"This omission unnecessarily invites continued litigation. The language leaves open the possibility that defense attorneys will assert that no valid death penalty law exists in Florida, demanding that trial judges strike notices of intent to pursue capital cases and refuse to impanel capital juries," she wrote.

However, "the state maintains that after severing the constitutional defect, current capital prosecutions should still be conducted as long as the trial courts ensure that the jury's final recommendation is unanimous," Dittmar continued.

The arguments "will no doubt be rejected by some trial courts and accepted by others," leading to more litigation in "an already overburdened system," Dittmar wrote.

"...This court's finding of a constitutional flaw will only generate confusion, absent some clarification as to trial court's authority to cure the legislative error," she argued.

But defense lawyers maintain that, a decade ago, the Supreme Court asked the Legislature to address the issue of unanimity. They say it's now the Legislature's job --- not the court's --- to fix the law.

"It's not clarification to ask the court to rewrite the statute," said Martin McClain, who has represented over 200 defendants facing the death penalty.

Like Bondi, legislative leaders and prosecutors --- who pushed for 10-2 jury recommendations in death-penalty cases over the repeated warnings of defense lawyers --- contend that the statute does not have to be changed immediately for prosecutions to move forward.

But an Ocala judge on Monday put on hold the penalty portion of a murder trial, saying the court needed direction from the Legislature before proceeding.

Arguing for the state in the request for clarification, Dittmar wrote that the flaw in the statute "is easy to fix" through "accurate jury instructions and simple interrogatories" and "does not require any substantive rewriting of the law."

But defense lawyers say that allowing trials to proceed without changing the statute could be even more problematic.

Relying on judges to craft jury instructions in different cases "is a situation that will cause havoc," said 5th Judicial Circuit Public Defender Mike Graves, whose office represents Kelvin Lee Coleman in the Ocala murder trial and who argued Coleman's case Monday. A jury late last week found Coleman guilty of 2 counts of 1st-degree murder.

"We literally could have dozens and dozens of different procedures, different jury instructions on the issue of death in individual cases. That, I think, would cause absolutely unnecessary complication in review," Graves said. "I don't for the life of me understand what their hurry is."

The state's death penalty has been in limbo since January, when the U.S. Supreme Court ruled that Florida's sentencing system was unconstitutional because it gave too much power to judges, instead of juries. Following that decision, the Florida Supreme Court indefinitely put on hold two executions, which are still pending.

Of the 31 states with the death penalty, Florida is 1 of just 3 --- including Alabama and Delaware --- that have not required unanimous jury recommendations for death to be imposed. Delaware's high court has halted that state's death penalty following the U.S. Supreme Court's decision in January in the Hurst case.

The Hurst ruling did not address the issue of unanimity, which became a flashpoint during this year's legislative session as Florida lawmakers sought to repair the state's death penalty sentencing process to comply with the U.S. Supreme Court decision.

Defense lawyers repeatedly told lawmakers that Florida's "outlier" status regarding unanimity jeopardizes the state's death penalty because the U.S. Supreme Court considers "evolving standards of decency" when considering the issue.

A Senate proposal originally required unanimous jury recommendations, but lawmakers ultimately struck a deal --- backed by Bondi and prosecutors --- in which at least 10 jurors were required to favor death for the sentence to be imposed.

"Refusing to make a steady, reasoned review of the situation is what led to the chaos our court system is now dealing with. Lives are literally at stake. Have patience. Take a breath," Pete Mills, an assistant public defender in the 10th Judicial Circuit who is chairman of the Florida Public Defender Association's death penalty steering committee, said in a telephone interview Friday.

"If the Court attempts to fix this on their own, it could be a violation of the separation of powers recognized in our state's Constitution," Mills said. "They run the risk of misinterpreting what the Legislature will do. The Legislature might have bigger plans."

Incoming Senate President Joe Negron, a Stuart Republican who will take over as head of the chamber after the November elections, told The News Service of Florida this week that there was "no ambiguity" regarding the need for unanimous jury recommendations following the state Supreme Court opinions.

Negron, a lawyer, said that lawmakers could deal with the issue during next year's 60-day legislative session, which begins in March.

Bernie McCabe, the state attorney in the 6th Judicial Circuit in Pasco and Pinellas counties, said he believes prosecutors can move forward because the state Supreme Court, in the decisions last week, "has established the procedures necessary if you're going to seek the death penalty."

But McCabe also said that the attorney general's concern about clarification is valid.

"We have cases pending that need to be resolved, and there is perhaps confusion over the proper mechanism over how to resolve them," he said.

McCabe said he is trying 2 cases in which he is seeking the death penalty that are at a critical stage.

"I think we can go ahead. Others will perhaps disagree," he said. "I can see where it might be helpful if the Supreme Court just came out and said, OK, judges here's what you do, and go ahead and do it."

Source: news4jax.com, October 21, 2016

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