A House committee considering the future of Florida’s death penalty statute heard Tuesday from a man once sentenced to Death Row.
Henry Brown, who described himself as a capital mitigation consultant in Tallahassee, said he was sentenced to death in 1973 but released after he pleaded to second-degree murder in 1993, although he denied killing anyone.
He urged committee members to consider making any changes to the sentencing guidelines retroactive beyond 2002, when the U.S. Supreme Court first ruled that juries must decide whether murders deserve the death penalty.
“Had I still been on death row, I wouldn’t fall under that part of the retroactively. I’d be stuck back there,” he said.
“I’ve done some pretty great things since I’ve been out,” he continued. Florida has one of the country’s largest death rows, but “Florida also has the largest population of exonerees in the country. So consider that also.”
The issue is before the Legislature because in October, in a long-litigated case, the Florida Supreme Court voted, 5-2, to strike down Florida’s death penalty law because it doesn’t require a unanimous jury verdict to put someone to death.
Florida now allows death sentences upon 10-2 votes by juries.
Michael Allen, a professor at Stetson University College of Law, noted a rush by capital defendants and their lawyers to have their cases tried while the death statute remains unsettled.
“If one wanted to make a very quick fix, you change 10-2 to unanimous, and you leave everything else in the statute exactly the same,” Allen said.
“That’s not to say somebody else couldn’t raise an issue down the road, but that solves the issue that’s out there right now, for certain.”
Making changes retroactive to 2002 would probably require the state courts to resentence between 150 and 170 people now on death row, Allen said.
If the state limits retroactivity, Brown predicted, “that’s going to be a problem for the Legislature; that’s going to be a problem for the state; that’s going to be a problem for the death penalty. Because it’s going to be litigated. It’s going to go back to the Supreme Court, and Florida wouldn’t be able to carry out its death penalty statute.”
Conservative blogger Ed Whelan isn’t giving up his position that retired Florida Supreme Court Justice James E.C. Perry continuing to work on pending cases “appears to be in plain violation of Florida law.”
Whelan wrote on National Review Online last week that Perry was wrongly “displac(ing)” Justice C. Alan Lawson, the newest conservative jurist on the state’s high court.
In the court’s defense, spokesman Craig Waters explained that the court’s “longstanding practice for many decades has been that retiring justices remain in senior status to complete their unfinished work after retirement.”
He also said “there are serious workload issues involved in processing cases because the work is cumulative … asking a new justice to step in … can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty.”
Whelan’s recent rebuttal said “the proposition that the court has employed this ‘practice for many decades’ does not speak meaningfully to the legality of the practice.
“If the court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto.”
Moreover, “it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases,” Whelan wrote.
Any “efficiency gains that Waters touts would be achieved by simply deciding the case without him,” he added.
“To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable.”
The Above The Law legal website is “handicapping Donald Trump’s Supreme Court shortlist” – and Florida Supreme Court Justice Charles Canady isn’t on it.
“In case you missed it over the holidays, Jan Crawford of CBS News, one of the most plugged-in Supreme Court reporters around, revealed Trump’sfive finalists” to replace the late AntoninScalia, who died last February.
In alphabetical order, they are Judge StevenColloton (8th Cir.) of Iowa; Judge ThomasHardiman (3d Cir.) of Pennsylvania; Justice JoanLarsen of Michigan; Judge WilliamPryor (11th Cir.) of Alabama; Judge DianeSykes (7th Cir.) of Wisconsin, according to Crawford.
The former lawmaker has been one of two reliable conservative votes on the state’s highest court, along with RickyPolston. But now joining them is conservative jurist C. Alan Lawson, replacing retired Justice James E.C. Perry.
Canady, a Lakeland native, served three terms in the Florida House of Representatives (1984-90) and four terms in the U.S. House of Representatives (1993-2001) as a Republican, rising to chairman of the House Judiciary Subcommittee on the Constitution.
He became general counsel to Gov. Jeb Bush, who laterappointed him to the state’s 2nd District Court of Appeal in Lakeland in 2002, the bio says.
Gov. Charlie Crist then named him to the state Supreme Court in 2008. Canady also served as the court’s chief justice in 2010-12.
How confident are stakeholders that Florida’s workers’ compensation system strikes the right balance between protecting injured workers while keeping costs under control?
Not very, according to a survey released this week by the Division of Workers’ Compensation.
Nearly 66 percent disagreed or strongly disagreed that the system strikes the right balance. At nearly 40 percent, “strongly disagree” got more votes than any other category.
Nearly 18 percent agreed the balance was right, and a little more than 6 percent strongly agreed.
“The words ‘complex,’ ‘litigious,’ ‘outdated,’ and ‘overregulated’ were most often used in describing the system,” division assistant director Andrew Sabolic said.
Sabolic presented the findings Wednesday to the Three-Member Panel — its actual name — which sets reimbursement policies and payment levels for health care providers, pharmacists, and medical suppliers working with workers’ compensation claimants.
The findings recalled the Florida Supreme Court’s April ruling in Castellanos v. Next Door Co., in which the court complained “the workers’ compensation system has become increasingly complex to the detriment of the claimant, who depends on the assistance of a competent attorney to navigate the thicket.”
The court struck down limits on attorney fees in that ruling, one of two decisions blamed by many in the business community for a 14.5 percent in workers’ compensation premiums that began taking effect last month. The 1st District Court of appeal is weighing whether that increase was calculated in violation of Florida’s open-government laws.
The division surveyed 4,468 people on its electronic notification list, including representatives of carriers; attorneys for workers, employers, or carriers; and health care providers or facilities.
Only 447 responded, but Sabolic hopes for better results next time.
The findings are presented here (scroll down to Exhibit 1 on Page 18).
“Going forward, I think we’re going to periodically ask these same questions, so we have a benchmark to see how things change,” Sabolic said.
The survey presented a list of words and asked respondents to pick the one that best describes the workers’ compensation system. The top pick was “complex,” at 20.8 percent.
Next came “litigious” at about 20 percent; “outdated” at a shade over 19 percent; and “overregulated” at nearly 17.9 percent.
Only 5.3 percent thought the system “fair to all parties,” and 6.7 percent chose “self-executing.”
The system is designed to provide a self-executing way for injured workers to recover lost wages and health care costs, without the need for attorneys and lawsuits.
Under Florida law, workers give up their right to sue in court in exchange for assurances they’ll be taken care of.
“Of all the descriptor words you used in the survey, the one that is statutory is ‘self-executing,’ and only 6.7 percent of your respondents agreed with you that it was a self-executing system,” said Tamela Perdue, a senior vice president for Sunshine Health, who represents employers on the panel.
“I think that’s pretty telling about where the system is and where it’s supposed to be,” she said.
Asked whether “carriers and health care providers collaborate to provide the best medical care for injured workers,” 29.4 percent strongly disagreed; nearly 27.6 percent disagreed; 23.8 percent agreed; and 4.4 percent strongly agreed.
In other findings:
— 43.55 percent of respondents thought the system favored employers, and 27.4 percent workers.
— Nearly 47.5 percent thought indemnity benefits were about right; 36 percent too low; and 16.5 percent about right.
— 52.8 percent thought medical reimbursement payments were too low; 35.8 percent about right; and nearly 11.4 percent too high.
— Asked, “Is overutilization a major medical cost driver in Florida’s workers’ compensation system?” the largest group, at a little more than 27 percent, agreed; 13.4 percent strongly agreed; 24 percent disagreed; and 13.4 percent strongly disagreed.
— Just shy of 29 percent agreed that carriers timely authorize medical treatment.
The largest response was from health care providers, at 42.4 percent. Next was employers at 26.2 percent; carriers at 11.4 percent; employee attorneys at 7.4 percent; health care facilities at 2.2 percent; and attorneys for employers or carriers at 1.1 percent.
Florida Supreme Court Justice James E.C. Perry has reached his final day in office.
Perry is stepping down Friday because he reached the mandatory retirement age for justices.
Perry was appointed by then-Gov. Charlie Crist to the court in 2009. He was the fourth black justice appointed to the court.
During his tenure, he was part of a group of justices that has issued rulings that angered the Republican-controlled Florida Legislature and Gov. RickScott.
Perry last week issued a lengthy dissent that asserted the state had applied the death penalty in a “biased and discriminatory fashion” and that there was no way it could be carried out in a constitutional manner.
Scott earlier this month appointed C. Alan Lawson, the chief judge of the 5th District Court of Appeal, to replace Perry.
Here are a few, starting with the court’s official case summary:
— Debaun v. State of Florida: “This case asks whether laws governing sexually transmissible diseases apply only when the parties involved are a man and a woman.”
Gary Debaun is trying to have a charge dismissed under a 1986 law designed to prevent the spread of the human immunodeficiency virus.
The case, argued in February, involves the definition of sexual intercourse in a case involving a gay man charged with not letting a partner know he was HIV-positive.
Lawyers for Debaun argued the law says it’s illegal not to disclose an HIV infection before “sexual intercourse,” but that definition only appeals to traditional sex between a man and a woman—not two men.
A lower court judge dismissed the charge against Debaun, but an appeals court reinstated it saying the law was clearly intended to include other sexual activity where there is a risk of transmitting the virus.
— Florida Department of Revenue v. DirecTV: “This case challenges a state law that taxes satellite television providers at a higher rate than cable TV.”
The question here is whether satellite-television service be taxed at a higher rate than cable. Oral argument was held in April.
Satellite TV companies, including DirecTV, want the court to uphold the 1st District Court of Appeal’s 2-1 decision last year, which said that taxing the two services differently is unconstitutional. The state’s Revenue Department and Florida’s cable TV industry want it overturned.
At issue is the state’s communications services tax (CST), which charges “direct-to-home satellite service” at a total rate of 11.44 percent. Cable TV, however, is taxed at a total of 7.44 percent. (The state reduced the CST effective last July 1.)
The lower court’s majority ruling held that different tax rates violate the U.S. Constitution’s Commerce Clause because they tend to benefit in-state cable companies over out-of-state satellite companies.
— Gretna Racing v. Department of Business & Professional Regulation: “This case asks whether local voters can authorize the operation of slot machines in counties outside of Dade and Broward.”
A horse track in Gretna, Gadsden County, about 30 miles west of Tallahassee, is asking the court to let it have slot machines because voters approved them in a local referendum in 2012.
If the court rules favorably, it could expand slot machines to counties where voters passed slots referendums: Brevard, Duval, Gadsden, Hamilton, Lee, Palm Beach, and Washington. That could result in the single biggest gambling expansion in the state.
Marc Dunbar, the track’s attorney told justices that the Legislature intended to allow for an expansion of slot machines in the state, saying counties were empowered under state law to decide whether to allow slots.
— Norman v. State of Florida: “This case challenges the constitutionality of Florida’s statute restricting the ‘open carry’ of firearms.”
Also in June, the court heard the case of Dale Lee Norman, which could uphold or overturn Florida’s ban on openly carrying a firearm. The National Rifle Association filed a friend-of-the-court brief.
Norman was arrested by Fort Pierce police in February 2012 after having gotten his concealed weapon license earlier that day, according to his initial brief.
“A concerned citizen noticed Mr. Norman’s firearm on his right hip and called police,” the brief said. “The State’s sole allegation in this case is that Mr. Norman carried a firearm conspicuously and openly rather than concealed.”
His attorney, gun-rights activist Eric Friday, said the ban should be stricken because it “infringe(s) on the fundamental individual rights of citizens to bear arms in defense of themselves, their families, and the State.”
The Associated Press contributed to this post, reprinted with permission.
Politicians have long been outraged – OUTRAGED, I tell you – about so-called “activist judges” who make them follow that pesky thing known as the law.
I guess it’s logical, therefore, for frustrated lawmakers to try and beat judges at their own game.
FloridaPolitics.com reported that State Rep. Julio Gonzalez, a Republican from Venice, filed two bills to address this issue. If passed, voters would be asked to approve a constitutional amendment to basically allow the state to thumb its collective nose if a judge just says no.
If enacted, it would allow the Legislature to over-ride rulings by a two-thirds vote within five years of the ruling.
The bills by Gonzalez take aim at both state and federal judges who, in the words of House Speaker Richard Corcoran, are the best example “of people putting power above principle …”
“We need judges who respect the Constitution and the separation of powers; who will reject the temptation to turn themselves into some unelected, super-legislature,” Corcoran said during a speech at his swearing-in ceremony.
“The problem with holding the same office for, in essence, life, is you start to think that the office is far, far, far less important than the person in it — which is why we need 12-year term limits on judges, so we can have a healthy judicial branch.”
Well, hold that thought for a moment, Mr. Speaker.
The separation of powers Corcoran embraces was never designed to be a judicial rubber stamp for lawmakers. It’s in there so judges can keep lawmakers from running amok – kind of the way Florida has done with its gerrymandered congressional boundaries and state House and Senate districts.
That was done against the will of voters, by the way. They approved separate constitutional amendments in 2010 that ordered districts “may not be drawn to favor or disfavor an incumbent or political party.”
And then, Republicans drew new districts that favored, well, Republicans. There was lawsuit by the League of Women Voters, which led to a ruling by Circuit Judge Terry Lewis that the boundaries of two districts broke the law.
To me, that is the textbook example of the separation of powers.
The same was true when the state Supreme Court ruled Florida’s death penalty law was unconstitutional. Note, the court didn’t say capital punishment itself was unconstitutional – only that the law saying only 10 of 12 jurors had to vote for death didn’t meet the legal standard.
That may be annoying to prosecutors and lawmakers who like to brag they’re tough on crime, but forcing them to work harder before sentencing a murderer to death is not unconstitutional.
Yes, judges sometimes make wacky rulings. Legislators also sometimes propose wacky bills that can become law.
When that happens, the only recourse is in the courts. Crying foul about “activist judges” who don’t see it their way is a weak argument from lawmakers who probably were trying to pull a fast one.
Even if these bills pass through the Legislature and makes their way to the governor’s desk for his signature though, opponents shouldn’t worry too much. They can probably get them overturned by appealing to one of those activist judges.
Lawmakers could override court decisions they don’t like under bills filed Tuesday.
State Rep. Julio Gonzalez, a Venice Republican, filed two pieces of legislation, one aimed at state judges and another at federal judges who interpret state laws.
The first measure (HJR 121) would allow the Legislature to review judicial rulings that declare legislative acts void. If approved in the 2017 Legislative Session, it would allow lawmakers to put the issue on the ballot and amend the state Constitution.
That means that if “the Supreme Court, (any) district court of appeal, circuit court, or county court” overturns a law, the Legislature could salvage it with a two-thirds vote within five years of the ruling.
House Speaker Richard Corcoran has made judicial reform a top priority during the next two years.
He has called for the state to impose a term limit for judges; in a November speech on the House floor, Corcoran said the state needs “judges who respect the Constitution and separation of powers; who will reject the temptation to turn themselves into some unelected, super-legislature.”
Gonzalez, an orthopedic surgeon by trade, also is taking aim at the feds, filing what’s known as a House memorial (HM 125).
“It is my concerted view that such provisions, if enacted by the people would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas,” said Gonzalez in a statement on his website explaining his decision to file the measures. “Equally as importantly, this would force the people to engage the legislature in enacting rectifications to current laws that they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of reelection.”
It urges Congress to propose a constitutional amendment to “deem a law that has been declared void by certain federal courts active and operational.” Such measures, if passed, are non-binding.
It says the judicial branch has taken “an increasingly activist role aimed at molding legislation according to the political beliefs of its members.”
The U.S. Supreme Court “currently possesses ultimate and unchecked authority on matters of the constitutionality of the United States’ laws such that its opinion on such matters has the same effect as amending the United States Constitution,” the measure says.
“Thomas Jefferson foresaw the dangers of ‘allowing judges to be the ultimate arbiters of all constitutional questions,’ calling this ‘a very dangerous doctrine indeed, and one which would place us under the despotism of oligarchy,’ ” it continues.
“And … the presence of such unchecked and plenary authority on determining the constitutionality validity of a law of the United States must be dismantled for the sake of our republic and for the continued empowerment of its people.”
__Tallahassee-based reporter Jim Rosica contributed to this report.
The court determined that this year’s U.S. Supreme Court opinion, Hurst v. Florida, requiring Florida juries—not judges—”to (determine) the facts necessary to sentence a defendant to death” does not apply retroactively to Asay and many others.
But the opinion can be retroactive for certain death-sentenced inmates whose “cases were not final” when another related U.S. Supreme Court ruling, Ring v. Arizona, came out in 2002.
That’s when the court first said juries alone must decide on “aggravating factors” for the death penalty. As of Friday, there were 384 convicts facing capital punishment in Florida.
Resentencing efforts could cost Florida taxpayers more than $100 million, said Mark Elliott, FADP’s executive director, in a statement.
“Florida taxpayers could spend more than $500,000 for each complex death sentencing phase that may or may not result in a sentence of death,” he said.
“Commuting these death sentences to life in prison without the possibility of parole would save many millions of critically needed criminal justice dollars,” Elliott added. “These funds could be reallocated to hire and train more law enforcement officers and better protect those who protect us.
“Now is the time to be both tough on crime and smart with taxpayer dollars.”
A spokeswoman for Gov. RickScott said the governor’s lawyers would review the ruling but did not immediately indicate when executions will resume.
Mark Asay will remain on the state’s death row, the Florida Supreme Court decided Thursday, likely to become the “first white person executed for the murder of a black person in this state.”
Its 80-page opinion also determined that this year’s U.S. Supreme Court opinion, Hurst v. Florida, requiring Florida juries—not judges—”to (determine) the facts necessary to sentence a defendant to death” does not apply retroactively to Asay and many others.
However, the opinion can be retroactive for certain death-sentenced inmates whose “cases were not final” when another related U.S. Supreme Court ruling came out in 2002.
In Ring v. Arizona, the court first said juries alone must decide on “aggravating factors” for the death penalty. As of Thursday, there were 384 convicts facing capital punishment in Florida.
But Thursday’s decision further suggested a court that continues to be fractured over the state’s death penalty. Most recently, Florida’s high court this October also said death sentences require a jury’s unanimous vote.
The controlling opinion in Asay’s case was a plurality of Chief Justice Jorge Labarga and Justices Peggy A. Quince and Ricky Polston. The latter two often are polar opposites in opinions, with Quince leaning left and Polston a reliable conservative vote.
But Labarga and Polston also weighed in with separate concurring opinions, as did Justices R. Fred Lewis and Charles Canady, who agreed with the result only.
Justice Barbara Pariente wrote a mixed-bag opinion, concurring in part with the opinion but also dissenting, and Justice James E.C. Perry, who retires at the end of the month, dissented with a stunning admission.
“The majority’s decision today leads me to declare that I no longer believe that there is a method of which the state can avail itself to impose the death penalty in a constitutional manner,” he wrote, echoing Justice Harry Blackmun that he “no longer shall tinker with the machinery of death.”
“I would find that Hurst v. Florida applies retroactively, period,” Perry wrote.
Asay, a white supremacist sentenced to death for gunning down two people in Jacksonville in 1987, had asked the court to review his case. He was on parole at the time of the shootings.
Asay, his brother, and another man were in downtown Jacksonville looking for prostitutes when a confrontation with Robert Lee Booker, who was black, turned deadly. Asay later that night shot and killed a transgender prostitute, born Robert McDowell, “a black man dressed as a woman” whom Asay had hired for sex.
“As to both murders, the trial court found Asay’s age of 23 at the time of the murders to be the only mitigation for his offenses,” the opinion said.
Asay, now 52, was sentenced in November 1988 and Gov. RickScott signed his death warrant this January. The court lifted a stay of execution in Asay’s case entered on March 2.
His latest claims include questioning firearms evidence used at trial and not having a lawyer when Scott signed his death warrant “and for the previous 10 years.”
Asay also argued he should be re-sentenced because of the Hurst decision, requiring juries to determine the factors that support a death sentence. And he said prosecutors had suppressed new evidence in his favor.
The plurality opinion dismissed each of his arguments, including saying Hurst can’t be applied retroactively, in part because “this Court, the State of Florida in prosecuting these crimes, and the families of the victims had extensively relied on the (then-)constitutionality of Florida’s death penalty scheme.”
Moreover, “there are a substantial number of death sentences the finality of which would be upended, nearly half of those defendants committed their crimes and had their sentences upheld decades ago,” it said.
Then, in a classic example of what law professors call a “negotiated paragraph,” the court reaches its main result.
After weighing all the applicable legal tests, it “conclude(s) that Hurst should not be applied retroactively to Asay’s case,” then says “we limit our holding to this context.” The justices immediately add, however, the tests “weigh against applying Hurst retroactively to all death case litigation in Florida.”
In her opinion, Pariente later explains the ruling “limit(s) the retroactive application of Hurst v. Florida to those cases that were not final when the United States Supreme Court decided Ring,” calling that unconstitutional.
Polston wrote that “the majority opinion has incorrectly limited the retroactive application of Hurst” in the context of the Ring case, that first said juries alone must decide on “aggravating factors” for the death penalty.
The majority “bar(s) relief to even those defendants who, prior to Ring, had properly asserted, presented, and preserved challenges to the lack of jury fact finding and unanimity in Florida’s capital sentencing procedure,” he said. “This Court need not tumble down the dizzying rabbit hole of untenable line drawing ….”
“Every pre-Ring defendant has been found by a jury to have wrongfully murdered his or her victim,” Polston said. “(T)his Court now limits the application of Hurst, resulting in the State wrongfully executing those defendants.
“It seems axiomatic that ‘two wrongs don’t make a right’; yet, this Court essentially condones that outcome with its very limited interpretation of Hurst’s retroactivity and application.”
And Labarga said separately, “our decision today does not apply to those defendants whose death sentences were imposed … solely as a result of a judicial override,” that is, a judge who imposes death over a jury recommendation of life imprisonment.
“There are only two death row defendants who satisfy this criteria—Matthew Marshall and William Zeigler Jr.,” he writes. “The impact of Hurst … upon their death sentences is an issue for another day.”