Capital Case Roundup — Florida Supreme Court Grants New Trials in Two Death Penalty Cases

On January 13, 2022, the Florida Supreme Court granted new trials to two Florida death-row prisoners. The court overturned Joe Simpson’s 2007 conviction and death sentence because of prosecutorial misconduct. It also overturned Peter Avsenew’s 2018 conviction and death sentence because of the improper presentation of remotely-recorded testimony.

Simpson was sentenced to death in 2007 for the murders of Archie Howard Crook, Sr. and his pregnant girlfriend, Kimberli Kimbler in 1999. In a 5-1 decision, the Florida Supreme Court overturned Simpson’s conviction and sentence because prosecutors unconstitutionally withheld from the defense evidence that one of the state’s lead witnesses, Crook’s son “Little Archie,” was a confidential informant for the state.

Another state witness, George Durrance, told police that Simpson confessed to the killings to him. The prosecution also did not inform the defense that Crook’s son had been an informant against Durrance in an unrelated case. The Florida Supreme Court held that this should have been disclosed to Simpson.

In ruling that the suppression of this evidence was prejudicial, the majority wrote that the “relationship between Simpson, Little Archie, and Durrance was of critical importance in this case, and the information Little Archie provided to law enforcement pertaining to Durrance casts a different light on this relationship.” The majority determined that “Little Archie’s testimony and credibility were of significant consequence when we consider the lack of evidence linking Simpson to the scene of the crime.”

Chief Judge Charles Canady dissented, arguing that the evidence withheld by the prosecution was immaterial to Simpson’s case, writing: “The fact that Little Archie had been a source to law enforcement in unrelated matters is of little, if any, relevance.”

Avsenew was sentenced to death in 2018 for the murders of Steven Adams and Kevin Powell in 2010. At trial, because of her health problems, prosecutors presented testimony from Avsenew’s mother via a video recording. The Florida Rules of Criminal Procedure permit the use of pre-recorded video testimony in certain limited circumstances in which a witness is unavailable to attend trial. The rules mandate that, when this occurs, the court must “keep the defendant in the presence of the witness.” The testimony in the case established that Ms. Avsenew could not see her son as she was testifying.

The court unanimously reversed Avsenew’s conviction. In assessing the prejudicial effect of the rules violation, the justices wrote: “Without question, the impact of Ms. Avsenew’s incriminating testimony on the jury would have been even greater because she is Avsenew’s mother.”

The Florida Supreme Court remanded the two cases to county trial courts to conduct new trials.