Florida

Florida

Florida Supreme Court: More Than 200 Prisoners Unconstitutionally Sentenced to Death May Get New Sentencing Hearing

More than 200 Florida death row prisoners may have their death sentences overturned, while more than 150 others who may have been unconstitutionally sentenced to death will not, as a result of two lengthy opinions issued by the Florida Supreme Court on December 22. The rulings in the cases of Asay v. State and Mosley v. State would entitle death row prisoners whose unconstitutional death sentences became "final" in or after 2002 to have their death sentences vacated in light of the decisions of the U.S. and Florida Supreme Courts in Hurst v. Florida and Hurst v. State earlier in 2016, but would deny that relief to death row prisoners whose sentences had the same constitutional infirmity but had become final prior to 2002. In the case of Mark James Asay, the court recognized that Asay had been condemned under sentencing procedures that both it and the U.S. Supreme Court had found to be unconstitutional. It nevertheless held that he was not entitled to resentencing because he had completed the direct appeal process before the U.S. Supreme Court issued a decision in Ring v. Arizona requiring that "a jury, not a judge, [must] find each fact necessary to impose a sentence of death." Even after the Ring decision, Florida courts continued to allow judges to find the facts necessary to sentence defendants to death; a jury would only recommend a sentence. In Asay's case, a jury recommended death by a 9-3 vote. Because his sentence was imposed in 1991 and became final before Ring, Asay was denied relief and the court lifted his stay of execution. In a second case, the Florida Supreme Court granted a new sentencing hearing to John Franklin Mosley—who was sentenced to death when the trial judge overrode the jury's 8-4 recommendation of a life sentence—because he was sentenced to death after Ring. In so holding, the court explained that "defendants who were sentenced to death based on a statute that was actually rendered unconstitutional by Ring should not be penalized for the United States Supreme Court’s delay in explicitly making this determination." The court limited its holding, however, only to those cases in which the constitutional violation was harmless. In order to be harmless, the court said "it must be clear beyond a reasonable doubt that a rational jury would have unanimously found all facts necessary to impose death and that death was the appropriate sentence." 

NEW VOICES: Latinos Increasingly Vocal in Opposition to Death Penalty

Juan Cartagena (pictured), President and General Counsel of LatinoJustice PRLDEF (formerly the Puerto Rican Legal Defense Fund), says there is "a growing understanding" among Latinos in Florida and across the country "that the death penalty is broken and it can't be fixed." In an op-ed for the Orlando Sentinel, Cartagena explains the reasons for Latino opposition to the death penalty, especially in Florida, which has a large Latino population and is home to Miami-Dade, Hillsborough, Pinellas, and Duval counties. Those four counties are among the 16 counties that have imposed the most death sentences in the U.S. over the past five years and, Cartagena writes, "[t]hey all suffer from prosecutor misconduct, bad defense lawyers, wrongful convictions and racial bias. In Miami-Dade County from 2010 to 2015, every single person sentenced to death was black or Latino." Cartagena particularly emphasizes the historical opposition to the death penalty among Puerto Ricans, of whom increasing numbers have moved to Florida in recent years. "Puerto Rico abolished the death penalty in 1929. Its constitution, drafted in 1952, states that 'the death penalty shall not exist.' Opposition to capital punishment is a part of our legacy." As a result, he writes, "Puerto Ricans in Florida are paying close attention" to the serious flaws in Florida's death penalty, including allowing non-unanimous juries to impose death sentences–a practice that was struck down as unconstitutional earlier this year. All these concerns, he says, are reflected in a nationwide "shift away from the death penalty" among Latinos. In the last two years, three major Latino organizations have made strong public statements against the death penalty. The National Latino Evangelical Coalition adopted a position against the death penalty in March 2015, contributing to a change in the National Association of Evangelicals' stance later that year. In June 2016, the National Hispanic Leadership Agenda called for repeal of the death penalty, and in August, the National Hispanic Caucus of State Legislators passed a resolution urging repeal.

OUTLIER COUNTIES: Miami-Dade Death Sentences Reflect Constitutional Defects, Misconduct

Miami-Dade County has historically been a significant contributor to Florida's death row and large proportions of its recent death sentences raise serious constitutional questions about the practices that result in death verdicts and the characteristics of the defendants who are sentenced to death. Miami-Dade imposed five death sentences between 2010 and 2015, placing it among the 16 counties that produced more death sentences than 99.5% of all U.S. counties. The questionable reliability of the Miami-Dade death penalty cases is illustrated by the characteristics of the seven cases that came before the Florida Supreme Court on direct appeal from 2006-2015. Six of those cases (86%) involved a non-unanimous jury recommendation for death, a practice the Florida Supreme Court struck down as unconstitutional in October 2016. Miami-Dade had the second highest rate of prosecutorial misconduct among the 16 most prolific death-sentencing counties and nearly a third (29%) of the cases decided on direct appeal since 2006 involved misconduct. In reversing one of the cases for misconduct, the court said the prosecutor “appeared to be committed to winning a death recommendation rather than simply seeking justice.” In another, the court overturned the death sentence as a result of the prosecutor's "inflammatory, egregious, and legally improper closing argument.” One former Assistant State Attorney, who was credited with sending more people to death row than any other Florida prosecutor, spoke disparagingly of the role of mitigating evidence in capital cases, saying, “Of course I feel bad that society has created a monster, but should the bad background in the past disable us from imposing an appropriate punishment now?” And the defendants judges sentenced to death in four of the cases had presented significant mitigating evidence that made them nearly indistinguishable from those who are exempt from capital punishment as a result of their age or mental health status. Yet such a full presentation of mitigating evidence was atypical in the cases that resulted in death verdicts. The lawyers in those cases presented an average of one day of mitigating evidence. The new death sentences also reflect the role of race. All five of the defendants sentenced to death in Miami-Dade from 2010-2015 were Black or Latino, and a study of sentencing rates in Florida found that defendants are 6.5 times more likely to be executed if the victim is a White female than if the victim is a Black male.

Florida Supreme Court Orders Re-Sentencing, Suggesting Hurst May Affect Many Florida Cases

On November 23, the Florida Supreme Court overturned the death sentence imposed by a judge on Richard Franklin after his jury split 9-3 in recommending he receive the death penalty for a 2012 murder. "In light of the non-unanimous jury recommendation to impose a death sentence," the court found that the death sentence violated Franklin's right to have a unanimous jury determination of all facts necessary to impose a death penalty and that the violation could not be excused as harmless. The court ordered that Franklin be given a new sentencing hearing. Although the court did not rule on any case other than Franklin's, the decision suggests that the court will order new sentencing hearings in at least several dozen cases involving prisoners whose non-unanimous death sentence were still pending on direct appeal at the time of the U.S. Supreme Court's ruling in Hurst v. Florida in January 2016. In Hurst, the U.S. Supreme Court struck down Florida's death sentencing scheme because key sentencing facts were determined by a judge, rather than a jury. In October, the Florida Supreme Court interpreted that decision as requiring that the jury unanimously recommend the death penalty before the trial judge could impose capital punishment. The Florida Supreme Court's description of Franklin's claim as a "Ring-Hurst claim" further suggests that the court may order new sentencing hearings for approximately 170 death row prisoners whose sentences became final since Ring v. Arizona, a 2002 U.S. Supreme Court decision requiring that a jury, rather than a judge, determine the existence of aggravating facts making a defendant eligible for the death penalty. The court has yet to rule on whether it will apply the constitutional protections recognized in Hurst to all death row prisoners, irrespective of their sentencing date, which could require resentencing of up to 290 people. Earlier, the court upheld judge-imposed death sentences when the defendant waived his right to a jury or the sentence followed a unanimous jury recommendation for death. According to retired Florida Supreme Court Chief Justice Harry Lee Anstead, "Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated."

OUTLIER COUNTIES: A Pledge of Change After Years of Error and Racial Bias in Hillsborough County Death Sentences

Change may be in the offing in Hillsborough County, Florida after voters ousted incumbent State Attorney Mark Ober on November 8 and replaced him with a reform candidate, Andrew Warren (pictured). Hillsborough ranks among the 2% of U.S. counties that are responsible for a majority of the prisoners currently on death rows across the country. The five death sentences imposed in Hillsborough from 2010 to 2015 under Ober's tenure placed the county among the 16 counties that had imposed the highest number of death sentences in the U.S.—more than 99.5% of other counties. Hillsborough's aggressive use of the death penalty has been plagued by error—three prisoners sentenced to death in Hillsborough have later been exonerated—and reflects a legacy of racial bias and exclusion. Tampa, the largest city in Hillsborough County, was among the four cities with the nation's largest Ku Klux Klan populations after the Great Depression. The Hillsborough County Bar Association did not update their charter to allow Black lawyers to join until 1972. The legacy of discrimination is evident in the recent death sentences imposed in the county: two-thirds have been imposed on Black defendants; and although a significant majority of murder victims in the county are Black, 60% of the victims in the cases in which death sentences were returned were White. Incoming state attorney Warren has vowed to address both the overzealous pursuit of the death penalty in the county and the problem of wrongful convictions. After Hillsborough was included in the Fair Punishment Project's report on outlier counties, Warren said, "That we are an extreme outlier in such a critical area is disturbing.... Our use of the death penalty needs to be fair, consistent, and rare. Unfortunately, for many years, it hasn’t been." Warren has also proposed the creation of a Conviction Integrity Unit to identify and redress wrongful convictions.

Voters Oust Prosecutors in Outlier Death Penalty Counties, Retain Governors Who Halted Executions

Prosecutors in three counties known for their outlier practices on the death penalty were defeated by challengers running on reform platforms, while voters in Oregon and Washington re-elected governors who acted to halt executions. In Hillsborough County, Florida, Democrat Andrew Warren defeated Republican incumbent Mark Ober (pictured, l.). Warren pledged to seek the death penalty less often and establish a unit to uncover wrongful convictions. In Harris County, Texas, incumbent Devon Anderson (pictured, r.) was defeated by Democratic challenger Kim Ogg. Ogg ran on a platform of broad criminal justice reform and had received support from the Black Lives Matter movement. Harris County leads the nation in executions and is second only to Los Angeles in the number of people on its death row. Ogg had said that the death penalty had created "a terrible image for our city and our county" and pledged that, "[u]nder an Ogg admninistration, you will see very few death penalty prosecutions." Brandon Falls, District Attorney of Jefferson County, Alabama, lost his seat to Charles Todd Henderson, who does not support the death penalty and said he plans to “bring about real criminal justice reform.” Hillsborough, Harris, and Jefferson all rank among the 2% of U.S. counties responsible for a majority of death row inmates in the U.S., and were among the 16 most prolific death sentencing counties in the U.S. between 2010-2015. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University, said. In gubernatorial elections, voters re-elected governors who had halted executions in their states. Washington voters re-elected Governor Jay Inslee, who imposed a death penalty moratorium, and Oregon voters gave a full term to Governor Kate Brown, who had extended her predecessor's moratorium and pledged to keep the moratorium in effect if elected. In North Carolina, voters defeated incumbent Governor Pat McCrory, who had supported efforts to repeal the state's Racial Justice Act. 

OUTLIER COUNTIES: Non-Unanimous Jury Verdicts Highlight Systemic Flaws in Pinellas County, Florida Death Penalty

Pinellas County, Florida ranks among the 2% of counties responsible for more than half of all prisoners on death rows across the United States and among the 2% of counties responsible for more than half of all executions conducted in this country since 1977. The five death sentences imposed in Pinellas between 2010 and 2015 also place it, along with three other Florida counties, among the 16 U.S. counties with the highest number of new death sentences in the country. One major reason for Pinellas' status is the high number of death sentences it has imposed after juries returned non-unanimous sentencing recommendations, an outlier practice that the Florida Supreme Court recently declared unconstitutional. All six of the Pinellas death sentences the Florida Supreme Court reviewed on direct appeal from 2006-2015 involved non-unanimous juries. Only two of those cases garnered the 10 juror votes in favor of death that would have permitted a death verdict to be imposed under 2016 amendments to Florida law that attempted to address another constitutional flaw in the statute. The non-unanimity provisions facilitated the extremely harsh use of the death penalty by Pinellas' prosecutors against defendants with significant mental health problems. Five of these 6 death sentences were directed at defendants with serious mental illness, brain damage, or intellectual impairment; and one was directed as an emotionally disturbed defendant who -- at only few months past 18 years old at the time of the offense -- was barely constitutionally eligible for the death penalty. According to a report by Harvard University's Fair Punishment Project, none of the other 15 outlier counties who have produced the most death sentences in the U.S. since 2010 imposed it so disproportionately against mentally impaired defendants. This prosecutorial overreaching occurred against a backdrop of racial bias and bad defense lawyering. In the cases mentioned above, every defense attorney presented a day or less of mitigating evidence at trial. The trial judge sentenced Richard Todd Robard to death after a 7-5 jury vote; a 6-6 vote would have spared his life. But Robard's lawyer, Richard Watts, decided not to present evidence of his client's brain damage and mental health problems because he didn't think the jury would be swayed by "brain abnormalities." Amid other evidence of racially imbalanced law enforcement practices in the county, 60% of the defendants sentenced to death since 2010 were black and 67% of the victims in cases in which the death penalty was returned were white.

Florida Supreme Court Vacates Capital Conviction on Innocence Claim

With newly discovered confessions and DNA evidence pointing to the prosecution’s chief witness as the actual killer, the Florida Supreme Court, on October 27, vacated the capital conviction of death-row prisoner Clemente Aguirre. Aguirre was convicted of killing his two neighbors--an elderly woman and her adult daughter--but he has always maintained his innocence and claimed that he discovered the women after they were deceased. After he was convicted, Aguirre's post-conviction attorneys discovered that the daughter and grand-daughter of the victims, Samantha Williams, had confessed to at least five different people that she killed her relatives, and DNA results show that her blood was at the crime scene. According to the Innocence Project, "[n]one of the DNA found on the 84 items that were tested matched Aguirre; most matched to the two victims, but two bloodstains were identified as coming from . . . Samantha Williams." In addition, "Samantha’s eight bloodstains had been collected from four different rooms—including in the bathroom where the state had argued at trial that the killer would have cleaned up—and each was found inches away from the victims’ blood." In its decision, the Florida Supreme Court said, "when compared to the evidence introduced at trial, the newly discovered evidence placing Samantha’s blood (rather than Aguirre’s) at critical locations of the crime scene coupled with Samantha’s numerous confessions to multiple individuals that she killed the victims 'weakens the case against [Aguirre] so as to give rise to a reasonable doubt as to his culpability,' entitling Aguirre to a new trial." Although Aguirre’s attorneys are urging prosecutors to drop the charges against him, a spokesperson for the Office of State Attorney Phil Archer said they intend to retry Aguirre. The trial judge imposed two death sentences upon Aguire after the jury had voted 7-5 and 9-3 in favor of death in the two murders. Twenty-six men and women have been exonerated from death row in Florida, the most in the nation. New data suggest that wrongful capital convictions may be more likely in cases in which juries do not reach unanimous recommendations for death. 18 of the 20 Florida exonerations for which researchers have been able to determine the jury vote have involved judges imposing the death penalty despite a jury recommendation for life or after a non-unanimous jury recommendation for death.

Pages