A group that includes former Florida Supreme Court justices and Circuit Court judges has banded together to file a brief in a case before the U.S. Supreme Court, asking the high court to stay Eric Branch's upcoming execution to address what they believe is an unconstitutional application of the law.
Branch is scheduled to be executed Thursday for the 1993 murder of University of West Florida student Susan Morris. He has been on death row for almost 25 years after an Escambia County jury in 1994 recommended the death penalty with a 10-2 vote.
The U.S. Supreme Court struck down Florida's death penalty law in 2016, and state law was then changed to mandate a jury unanimously sentence someone to death. The decision was based on another Escambia County case, that of Timothy Hurst, and has since been referred to as the Hurst ruling.
The Escambia County Circuit Court, and subsequently the Florida Supreme Court, have determined the Hurst ruling does not retroactively apply to Branch's case because too much time has passed since the murder.
Last week, Branch appealed his case on the same grounds to the U.S. Supreme Court after exhausting all appeals on the local and state levels.
Once documents were filed at the federal level, it opened the door for the former justices and judges to file a "friend of the court" brief, which is a way for people not directly involved in cases to offer their opinion on a case.
In their brief filed Thursday, the group wrote that the state had implemented an "unconstitutional retroactivity rule" in Branch's case. It further urged the U.S. Supreme Court to stay the execution until it could determine the constitutionality in denying Branch a retroactive Hurst case.
The Hurst case applies retroactively to cases in which convictions were finalized during or after 2002, which the group of law experts calls an "arbitrary line." It was a decision based on the precedent set in the case Ring v. Arizona, in which the judge, not the jury, decided on certain elements in a murder case.
The group estimates the non-unanimous jury recommendations of 165 death row inmates were not evaluated because their cases were resolved before 2002.
"The Florida Supreme Court's novel decision to adopt a retroactivity cutoff date that includes only a subset of sentences that became final on direct review before Hurst has exacerbated the injustice beyond tolerable Eighth Amendment limits," the brief reads.
The group is made up of former Florida Supreme Court Justices Rosemary Barkett, Harry Lee Anstead, Gerald Kogan and James E.C. Perry; former Circuit Judges O.H. Eaton and Laura Melvin, who served in the First Circuit; and former state Rep. Talbot "Sandy" D'Alemberte, who is also a former president of Florida State University.
Based on the divided recommendation the jury handed down in Branch's case in the 1990s, the group argues it is likely that if a new jury heard the case today, Branch would not be sentenced to death.
DLA Piper partner Ilana Eisenstein is the counsel for the group. She said the group's decision to weigh in on a capital case days before execution is rare.
"I think it's a significant step and one we hope will get the court's attention ... . In my mind, this isn't just about Mr. Branch but the constitutional questions at stake and the process Florida uses to implement the (death penalty)," she said.
Eisenstein said the appeal to the U.S. Supreme Court is Branch's "last stop" in appealing the constitutionality of his execution. And with the execution scheduled for Thursday, it's hard to tell what kind of impact the group's brief might have on staying the execution.
"I think a lot of times in capital cases the attention is placed on the individual defendant, but there's also an importance of process," she said.
Assistant State Attorney John Molchan has long been the prosecutor in Branch's case at the local level. He said the court's decision to deny the retroactive application of the Hurst ruling is a procedural issue that is consistent with what the state has done in the past.
"When Ring (v. Arizona) came about, it was a procedural change, and they've never been held to be retroactive because if you apply that to everything, you'll potentially have no finality in the justice system," he said.
With how frequently procedures are updated and changed, if there was no retroactive cut-off date, the justice system would never move forward, Molchan said.
Branch's appeal was still pending before the U.S. Supreme Court as of Tuesday evening. His execution is scheduled to take place at 6 p.m. Thursday at Florida State Prison in Raiford.
Source: Pensacola News Journal, Emma Kennedy, February 21, 2018
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