America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Florida Supreme Court deals blow to death penalty

Florida's death chamber
Florida's death chamber
Florida's highest court has thrown out the death sentence of a man responsible for a Central Florida murder.

The big question: How will this affect others on death row?

The legal community is debating that right now.

Florida lawmakers this year passed a new law demanding at least 10 of 12 jury members agree on the death penalty for the sentence to be handed down.

In October, the State Supreme Court ruled the law unconstitutional. This new ruling reaffirms that the court wants unanimous jury recommendations.

Condemned killer Richard Franklin is getting another chance to spare his life, after the Florida Supreme Court decided his death sentence was improperly carried out.

The 7-0 court decision noted, "In light of the non-unanimous jury recommendation to impose a death sentence ... we vacate Franklin's death sentence and remand this case for a new penalty phase proceeding."

Franklin was convicted June 19, 2013, and sent to death row on August 2, 2013, for murdering a guard inside Columbia Correctional March 12, 2012.

Sgt. Thomas Ruben was stabbed to death and another guard was permanently disabled by Franklin.

The jury voted 9-3 for capital punishment and the judge concurred, a decision challenged by Franklin's attorneys after the U.S. Supreme Court outlawed Florida's sentencing guidelines.

Franklin was given a life sentence in 1995 after his conviction for murdering a 25-year-old Bethune-Cookman University student on November 24, 1994.

Gregory Roper was a senior at the University. He was shot to death. His body was found in the woods off Williamson Boulevard in Daytona Beach, leaving his family devastated.

His father, Welton Roper, told WESH 2 News on December 9, 1994, “That someone could take a person's life and have so little value of the meaning of life you know I just, I can't fathom it.”

Despite overwhelming evidence of his crimes, Franklin's death sentence in the Ruben murder, in the eyes of the state's highest court, was not fairly carried out.

A new sentencing hearing will be ordered in the Circuit Court of Columbia County for Franklin in connection with the prison guard murder. It will not have any effect on the life sentence he's serving in Roper’s murder.

Source: wesh.com, Greg Fox, November 23, 2016

Defense lawyers hope rulings will clear death row in Florida

Recent rulings by the Florida Supreme Court are paving the way for the state to clear out death row, defense lawyers and death penalty advocates say.

While prosecutors across the state can fight to uphold the death sentences of 379 men and four women facing execution, defense experts say the burden of doing so may be too unwieldy for the state to pursue. Palm Beach County has seven inmates on death row. Broward has 22, and Miami-Dade has 26.

"At this point, no one on death row has had a constitutionally valid death penalty," said Karen Gottlieb, co-director of the Florida Center for Capital Representation at Florida International University's College of Law.

A month ago, the state's high court ruled in Hurst v. State that juries must unanimously agree to a death sentence before a judge could impose it. The ruling negated a law passed earlier this year requiring at least a 10-2 vote. Now Florida has a death penalty but no legal way to sentence someone to it, at least until the legislature passes a new law that survives future legal challenges.

Last week, the court removed two convicted killers from death row, changing their sentences to life in prison.

On the surface, the court's decision to commute the sentences of inmates Terrance Phillips, 25, and Robert McCloud, 35, were not related to the earlier finding that the state's death sentence process is unconstitutional — their cases were argued prior to the new ruling. But the juries in both cases recommended death by 8 to 4 votes, which could have been the basis of later challenges.

Phillips, of Jacksonville, was convicted of two 2009 murders. His sentence was changed to life in prison on the basis of his age (he was 18 at the time of the murders) and his mental capacity. McCloud, of Orlando, saw his sentence in a double murder changed to life in prison because three co-defendants received lesser sentences and the jury did not conclude he was the actual shooter.

Gottlieb and other anti-death penalty advocates said the state is going to have a tough time keeping anyone on death row because everyone on it was sent there by a jury that was told that they did not have to reach a unanimous decision on various questions leading to a death sentence.

Those questions include whether aggravating factors were proved beyond a reasonable doubt, whether those factors outweigh mitigating factors, and whether the death penalty is appropriate under the circumstances of the crime.

Florida Attorney General Pam Bondi has asked the supreme court for a clarification of its ruling, including whether it applies to cases already underway. The court's answer, when it comes, will have immediate impact in Broward, where State Attorney Mike Satz and a team of defense lawyers are in the middle of picking a jury in the trial of three men accused of murdering Sheriff's Deputy Brian Tephford in 2006.

Florida's death chamber
Florida's death chamber
But defense lawyers say they're busy preparing appeals in their death row cases.

Richard Rosenbaum, who represents death row inmate Randy W. Tundidor, said he plans to appeal despite the fact that the jury in his case recommended death 12-0 for the 2010 murder of Tundidor's landlord, Nova Southeastern University professor Joseph Morrissey.

Tundidor, 49, was convicted in 2012, but in the penalty phase of his trial, he refused to present testimony to support a lesser sentence. Jurors could have recommended death by a simple majority, but Rosenbaum said Tundidor would have fought harder if he could have avoided the death sentence by persuading a single juror to vote against it.

"He wouldn't have waived mitigation," Rosenbaum said. "That alone should entitle him to a new sentencing hearing."

Broward's most recent death row inmate, James Herard, was sentenced in 2015 for the 2008 murder of Eric Jean-Pierre in Lauderhill. His case has parallels with McCloud's — the jury in Herard's case was not unanimous in its recommendation of death, and Herard was not the triggerman. The person who actually shot Jean-Pierre, Tharod Bell, was sentenced to 50 years in prison.

Palm Beach County hasn't sentenced a killer to death since 2002, when John Chamberlain, now 38, and Thomas Thibault, now 41, were convicted of the Thanksgiving Day 1998 murders of Bryan Harrison, Daniel Ketchum, and Charlotte Kenyon in West Palm Beach.

Thibault's sentence was changed to life in prison in 2003 because the judge in his case imposed death without a jury's recommendation. Chamberlain's sentence was reduced because Thibault, the shooter, was no longer facing death.

The most recent inmate from Palm Beach County remaining on death row is Carlton Francis, 41, convicted in 1998 of the murders of twin sisters Clair Brunt and Bernice Flegel in West Palm Beach. The jury recommended death by an 8 to 4 vote in Francis' case.

The more defense lawyers challenge death sentences, the more likely it is that the vast majority of cases will end up getting changed to life sentences, said Nancy Abudu, legal director of the American Civil Liberties Union of Florida.

"It just makes sense in terms of efficiency," she said. "New sentencing hearings for all of these inmates would be a daunting task. You could only imagine the burden of picking new juries and finding witnesses from cases that are 10, 20 years old and older...Commuting those sentences just makes sense. It's the best thing to do in light of the fact that Florida's system has been declared unconstitutional."

Source: Sun Sentinel, Rafael Almeda, November 23, 2016

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