Martin Dyckman: Looming narrow point of law could clear death row

None of the nine U.S. Supreme Court justices has ever had the gut-wrenching experience of looking another person in the face to say, “I sentence you to die.” They have passed on or passed up hundreds of capital appeals, but that’s far removed from having to impose a death sentence at trial.

“It’s hard to forget,” says Phil Padovano, a retired Florida judge who presided over two death cases. The one man he condemned is still on death row.

Florida law gives judges much discretion and little guidance in making that call, which is why a case the U.S. Supreme Court will hear during its October term has the potential to nearly empty the state’s death row.

In developments that are rare enough to be remarkable, Padovano and six other former Florida trial judges have filed a brief calling on the nation’s highest court to overturn their own state’s death-sentencing law. So have three former justices of the Florida Supreme Court.

Their friend-of-the court briefs support the appeal of death row inmate Timothy Lee Hurst, who argues that Florida’s law is unconstitutional in light of a 2002 U.S. Supreme Court decision, Ring v. Arizona.

The court ruled 7-2 that any fact a judge cites to support a death sentence must have been determined by the jury. The jury that convicted Timothy Ring of an armored car robbery in which the driver was killed did not find that he was the shooter, which would have been an essential aggravating circumstance. The judge decided that for himself after hearing post-trial testimony.

Florida law similarly specifies certain aggravating circumstances, but requires the judge to surmise, in effect, which if any the jury found. Although the jury votes whether to recommend death or life in prison, the actual decision is left to the judge.

“(I)n practice,” says the brief filed on behalf of former Florida justices Harry Anstead, Rosemary Barkett and Gerald Kogan, “Florida death sentences are not based on a jury’s factual findings.”

The Florida Supreme Court, they say, “permits a trial judge to impose, and the Court itself to uphold, a death sentence based on aggravating circumstances that were never argued to the jury, based on evidence that the jury never heard.”

Florida even forbids juries from reporting how they voted — or indeed, whether they voted at all — on the aggravating factors, such as whether the crime was especially “heinous, atrocious, or cruel.”

Hurst’s jury voted 7-5 to recommend his execution for murdering a fellow employee at a Pensacola fast-food restaurant.

The Florida Supreme Court split, 4-3 in upholding his conviction and death sentence last year.

Writing for herself and two dissenters, Justice Barbara Pariente said it was “actually possible that there was not even a majority of jurors who agreed that the same aggravator applied.” They agreed that the Ring decision ought to be binding on Florida. As in previous cases, the majority held that Ring does not apply. Pariente has been a consistent dissenter.

So was Anstead, who expects to be vindicated in Washington. Justice Antonin Scalia, he remarked in an interview, has been “the loudest cheerleader for a rigid application of the Ring standard.”

“(O)ur people’s belief in the right of trial by jury is in perilous decline,” Scalia wrote in a concurring opinion in Ring. “That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed.”

Justice Ruth Bader Ginsburg, who wrote the majority opinion in Ring, recently joined Justice Stephen Breyer in concluding that the death penalty is fundamentally unconstitutional. The other remaining justices from the Ring majority are Scalia, Clarence Thomas and Anthony Kennedy. So the odds appear to favor Hurst.

It’s hard to tell how many of Florida’s 393 other death row inmates would be spared if Hurst wins. It would depend, among other things, on how the decision is written.

“Hurst indeed has a shot at winning,” says Michael Radelet, a law professor from Florida now teaching in Colorado and an expert on the issue. “… I doubt they will go so far to upset the convictions, but even those with a unanimous death vote might have their sentences tossed.”

The Florida Legislature has been playing a game of chicken ever since 2002, gambling that Ring would never apply despite persistent requests from trial judges and the state Supreme Court itself to change the law to require that juries report their votes on aggravating circumstances. To do that, some lawmakers felt, would call earlier sentences into question.

Karen Gottlieb, a co-author of the former Florida justices’ brief and co-director of the Center for Capital Representation at the Florida International University School of Law, says Florida judges have begun staying capital proceedings to say how Ring plays out.

The seven former trial judges who filed a brief are Padovano, of Tallahassee; Janet Ferris, who is his wife; Thomas H. Bateman III and Nikki Ann Clark, also of Tallahassee; Martha Ann Lott and Larry Turner of Gainesville; and O. H. Eaton J., of Sanford, who is a nationally recognized expert on capital trials.

Their brief cites research findings by Eaton that the life or death decision depends more on who is the judge than on the facts of the case. A jury’s death sentence, they say, “is likely to be a more reliable representation of the community’s moral values and conscience than one imposed by a single judge.”

Padovano said in an interview that he thinks some judges impose death sentences expecting the Florida Supreme Court to overrule them. It does, but rarely

Jury sentencing, he said, “is less political. Juries don’t have to face the ‘soft on crime ads’ in the next election.”

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in Western North Carolina.