Retiring Justice gives final voice of reason on Florida’s death penalty

There are some things that only lawyers can explain.

This is one of them.

But I defy them to make sense of it.

Just in time for Christmas, the Florida Supreme Court in two cases last week gave new leases on life to 213 convicted killers but turned down about 173 more.

The only difference between the two groups is the turn of one page on the calendar.

Those whose sentences — or new sentences after appeal — became “final” on June 24, 2002, will, in most cases, have another chance to persuade juries that they shouldn’t die. This time, all 12 jurors would have to agree that they should.

Those whose sentences became “final” on June 23, 2002, or earlier are out of luck, unless they can persuade the U.S. Supreme Court to correct the Florida court one more time.

It should. As Florida Justice James E.C. Perry protested in dissent, the majority’s ruling “makes constitutional protection depend on little more than a roll of the dice.”

The significance of June 24, 2002, is this: On that date, the U.S. court — hereafter, SCOTUS — ruled in Ring v. Arizona that a jury, not a judge, must determine the existence of any fact that increases the maximum penalty for a crime, as in the difference between life in prison and death.

But for 12 more years, the Florida court — hereafter, SCOFLA — continued to swat down defense lawyers’ arguments that Ring meant Florida’s death sentencing law was just as unconstitutional as Arizona’s. And SCOTUS took no opportunity to say so until last January, when it ruled in favor of Timothy Hurst, a killer from Pensacola.

Florida’s law left it to the judge to determine what factors the jury found in favor of a death sentence. It did not require — in fact, did not even allow — juries to report how they voted, except as to the ultimate vote on life versus death, which didn’t have to be unanimous.

Hurst left SCOFLA to decide how far back his ruling should be applied. In a rather inartful compromise, five justices settled on the date the first shoe fell, in the Ring decision of 2002. But two of them, the conservatives Charles Canaday and Ricky Polston, also argued that Hurst shouldn’t apply retroactively to anyone. (Canaday is on Donald Trump‘s short list for SCOTUS.)

A third, Fred Lewis, said it should apply to anyone who challenged the constitutionality of Florida law at any time.

“This court need not tumble down the dizzying rabbit hole of untenable line drawing,” he protested.

Much in the two majority opinions really is dizzying, involving gibberish about the differences between “jurisprudential upheavals” and “evolutionary refinements” and other distinctions that matter only to lawyers. Was Ring a “development of fundamental significance?” Was it of “sufficient magnitude” to require new sentencing hearings for all or most of the 383 people on death row?

If you ask me, nothing is more fundamental than the right to trial by jury. It appeared that way to Justice Barbara Pariente as well. In dissent, she argued against what she considered overblown fears of too much pressure on the justice system.

“I would conclude,” she wrote, “that Hurst creates the rare situation in which finality yields to fundamental fairness … The majority’s conclusion results in an unintended arbitrariness as to who receives relief depending on when a defendant was sentenced, or in some cases resentenced.”

Fundamental fairness? That’s what often sets “law” apart from “justice.”

And so it has again, in Tallahassee, Florida, on December 22, 2016.

Perry, in his last major decision before his mandatory retirement for age next week, wrote an even more passionate appeal to Florida’s conscience.

He noted that Mark James Asay, the test case defendant whose conviction was final eight months before Ring, would be the first white man Florida ever executed for murdering blacks. (He gunned down two in Jacksonville, exclaiming after the first that “you got to show a n—-r who’s boss.) On the other hand, said Perry, who is one of Florida’s two African-American justices, three out of every four blacks whom Florida has executed were convicted of killing whites.

“This sad statistic is reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today,” he wrote. “Indeed, as my retirement approaches, I feel compelled to follow other justices who, in the twilight of their judicial careers, determined to no longer ‘tinker with the machinery of death.’  I no longer believe that there is a method of which the state can avail itself to the death penalty in a constitutional manner.”

John F. Mosley, whom the court spared in the other test case, strangled the mistress who bore him a child and left the baby to suffocate in a plastic bag. It appears that the murderer and victims were all black. He gets a new sentencing hearing because his crime was in 2004, after Ring, and his lawyers raised that issue at every opportunity.

Perry had the best answer to all this bloody business. That was to invoke a 1972 Florida law providing for automatic life sentences whenever its death penalty is ruled unconstitutional.  It would treat everyone alike, it would spare the courts any new burden, and it would let no killer out of prison. It would moot any more appeals to SCOTUS, leaving 386 killers in prison for life, where they belong. That would be finality with a capital F.

But Perry’s was the only voice of pure reason. His retirement is Florida’s loss.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.