Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
Some people who have been reading this blog know that I have been waiting for the decision in Evans v. McNeil, 08-14402-CIV-JEM, to make its way to the Eleventh Circuit. (For a quick reminder, see some of my other posts on the case here). Why do I care so much? A recent article in the Florida Bar News highlights the importance of the Evans case nicely.
First, as I mentioned in my July 6 post, Evans is the first time that a court has ever declared Florida’s death penalty scheme unconstitutional. It’s not like the Florida courts have not had the opportunity to declare it unconstitutional before. As noted in the article published in the Florida Bar News, Justices on the Florida Supreme Court have been openly expressing their dissatisfaction with the death penalty scheme, and calling it into question in light of Ring v. Arizona, for years. Just read of some of the concurring and dissenting opinions authored by Justices Pariente or Wells in any one of the many death penalty cases decided since Ring. But for some unknown reason, the Florida Supreme Court has failed to actually take the step of declaring the death penalty scheme unconstitutional.
And, making matters worse, is the Florida Legislature, refusing to act despite being given numerous chances to do so. Why not just amend the death penalty statute to ensure compliance with Ring, especially after repeated requests by Justices on the Florida Supreme Court? Why ignore the Justices’ recommendations for further study of death penalty issues? Instead of keeping and using the only fact finding body it had in existence on the issue, the Commission on Capital Cases, the Florida Legislature recently opted to cease funding the Commission in budget negotiations. Ironically, the first death warrant signed by Governor Rick Scott was signed on the last day of the Commission’s existence.
At present, we have three branches of government that are working in an entirely circuitous fashion, getting nowhere fast. The Governor continues to sign death warrants, stating that Judge Martinez’s decision in Evans is not binding. The Justices call on the Legislature to amend the death penalty statute, but refuse to declare it unconstitutional. And then we have the Legislature, a group of people who refuse to do anything except keep their heads buried in the sand. The article in the Florida Bar News states that Florida is an outlier state because it is now the only state that allows the death penalty to be imposed even though during the penalty phase, the jury may decide to impose the death penalty based on a mere majority (but not unanimous) vote.
I don’t know about you, but I don’t really think that being an outlier state on this issue is a good thing. Since nobody in the State can seem to fix the problems with the death penalty, it’s about time that someone from outside the State stepped in to do it for us.
The Miami Herald reports in an article today that the State of Florida has asked the Court to reconsider its previous Order wherein the Court found Florida’s death penalty scheme unconstitutional. The Court has not yet ruled on the motion. It is unlikely that the Court would rule until the time for Evans to file a response has elapsed. Under the Local Rules for the Southern District, parties generally have 14 days to respond to motions. According to the article, Attorney General Pam Bondi stated that the State of Florida will take an appeal to the Eleventh Circuit if Judge Martinez does not alter his ruling.
A United States District Court Judge for the Southern District of Florida, Judge Jose Martinez, recently granted a 2254 petition for writ of habeas corpus in Evans v. McNeil, 08-14402-CIV-JEM, concluding that Florida’s death penalty procedure violates the United States Supreme Court case of Ring v. Arizona. In Ring, the Court struck down Arizona’s death penalty scheme because jurors were not required to agree on aggravating factors, which violated the Sixth Amendment. In Florida, the death penalty is handed down in a 2 step process. First, the jury may recommend the death penalty if 6 of the 12 jurors agree. (I am not the only attorney to recognize how ironic it is that to be convicted of even a misdemeanor crime, the jury verdict must be unanimous, but to be sentenced to death, only 6 of the 12 must agree). In the second step, after the jury makes its recommendation, the Judge conducts a sentencing hearing where he or she uses the jury recommendation in reaching the actual sentencing decision. According to Judge Martinez’s opinion, the Florida scheme violates Ring because (1) the jury is not required to unanimously agree on the factors in support of the death penalty; (2) the jury never makes any specific findings of fact in support of their recommendation; and, (3) in the sentencing phase, the Judge takes evidence alone, without a jury, and neither the defendant, nor any reviewing court, has any way of knowing whether the Judge imposed the death penalty based on the same, or different factors, than were relied on by the jury. According to Judge Martinez, such a process cannot be reconciled with Ring.
No doubt, Judge Martinez’s Order will be appealed, and criminal lawyers across the State will be watching. A flurry of appeals will likely be filed by death row inmates themselves. Perhaps the Florida Legislature could just save everyone some time and effort, and create a new scheme to cure the constitutional deficiencies. Somehow, I suspect that won’t happen. The Florida Supreme Court already asked the Legislature to fix the sentencing scheme, and the Legislature failed to act. Even if the Legislature did act, I doubt they could pass anything. If Florida’s legislators cannot even agree on simple legislation, how could anyone expect them to agree on something as important as the death penalty?