Florida

Florida

To End Years-Long Delays, Prosecutors in Three States Drop Death Penalty

Prosecutors in separate capital cases in Indiana, Florida, and Texas have dropped pursuit of the death penalty in order to end notoriously lengthy delays and facilitate healing for the victims’ families. On March 8, 2019, St. Joseph County, Indiana prosecutors agreed to a plea deal instead of a third death-penalty trial for Wayne Kubsch (pictured) at the request of the victims’ family. Kubsch was initially sentenced to death in 2000 and received the death penalty a second time in 2005, but both times his triple-murder convictions was overturned. In announcing the plea agreement, St. Joseph County Prosecutor Kenneth Cotter said “[t[he family actually asked us to take the death penalty off. They wanted to remember their loved ones, not remember him every time he came back with another appeal.” Kubsch pled guilty and was sentenced to life without parole, agreeing to waive his right to appeal his sentence. “I'm 75 years old. I'll soon be 76. And we decided that the best thing would be life in prison, because that way we don't have all the appeals. We don't have all this to go through and the kids don't have to deal with this constantly,” said Diane Mauk, the mother of victim Beth Kubsch. Chief Deputy Prosecutor Eric Tamashasky said, "For the family, this gives them the closure that they’ve so desperately needed for 20 years.”

Prosecutors also decided to drop the death penalty to end lengthy pre-trial delays in cases in Florida and Texas. After eight years of proceedings in what news reports described as Hillsborough County’s “longest-running murder case that has yet to see trial,” Florida state attorneys announced on February 4 that they would no longer seek the death penalty against Michael Keetly. Keetly had been in pretrial detention for nearly 3,000 days. Keetly’s attorney, Lyann Goudie, said she had recently presented mitigating evidence to the prosecutors in an effort to persuade prosecutors that they were unlikely to obtain a unanimous vote for death, and had challenged the ballistic evidence and eyewitness identification the prosecution intended to present at trial. Following the prosecution’s decision, the case is now scheduled to go to trial in June.  Todric Deon McDonald was charged with two counts of capital murder in McLennan County, Texas, more than four years ago. In 2018, with the case facing additional delays to permit the defense to prepare for a potential penalty phase, the victims’ families told prosecutors they supported withdrawing the death penalty if it meant the case would proceed to trial as scheduled. The prosecutors dropped the death penalty in August 2018 and jury selection began on February 11, 2019, after McDonald had spent 1,733 days in jail. McDonald was convicted three days later and sentenced to life without parole.

A death-penalty trial requires extensive pretrial preparation, because defense attorneys have to conduct an in-depth investigation into their client’s life history and mental health to present mitigating evidence in the event their client is convicted. The longer pretrial period is one of many reasons why death-penalty trials are significantly more expensive than trials in which a death sentence is not an option. There is also a lengthy appeals process if a defendant is sentenced to death, and at that point, the most likely outcome is that the conviction or death sentence will be reversed.

With Backing of New Governor, Florida Clemency Board Posthumously Pardons the “Groveland Four”

On January 11, 2019, the Florida Clemency Board unanimously granted posthumous pardons to the “Groveland Four,” four young African-American men falsely accused of raping a young white woman in Lake County, Florida in 1949. During the racist hysteria following the accusation, white mobs burned down black residences, a massive white posse lynched a black suspect, all-white juries condemned two innocent men to death and an innocent teen to a life sentence, and a racist sheriff murdered one of the men and attempted to kill another. Gov. Ron DeSantis, convening the board for the first time since his election, urged it to grant clemency, calling the notorious case a “miscarriage of justice.” The state legislature issued a formal apology to the family members of the men in 2017, but former Gov. Rick Scott had taken no action on a pardon.

The four black men – Charles Greenlee, Ernest Thomas, Walter Irvin and Samuel Shepherd – were accused of the 1949 rape of a 17-year-old white woman, Norma Padgett. Thomas escaped from custody but was hunted down and murdered by an angry mob. He was reportedly shot 400 times. White mobs burned and shot at the homes of black families, many of whom fled and never returned. Greenlee, Irvin, and Shepherd were beaten until they falsely confessed to the crime. All-white juries convicted them, sentencing World War II veterans Irvin and Shepherd (pictured, right) to death and Greenlee (pictured, left), who was only 16 years old, to life in prison. The NAACP took up the men’s case, and they were represented by Thurgood Marshall, among others. In 1951, the U.S. Supreme Court unanimously overturned Irvin and Shepherd’s convictions. Shortly after the reversal, Lake County Sheriff Willis V. McCall shot the two handcuffed men while he was driving them to a court appearance, and posed for a photo in front of their prone bodies. McCall claimed that he had acted in self-defense. Shepherd died. Irvin, who survived by playing dead until others arrived at the scene, was retried and once again sentenced to death by an all-white jury. He received a last-minute reprieve when the prosecutor expressed doubt as to his guilt and his sentence was commuted to life in prison. Greenlee and Irvin were both eventually paroled, but Irvin died just one year after his release. Greenlee died in 2012.

Carol Greenlee, Charles Greenlee’s daughter, testified in favor of the pardons. In an interview, she said, “I wanted two things to happen. I wanted the world to know the truth, and I wanted my daddy’s name cleared.” Governor DeSantis said, “I don’t know that there’s any way you can look at this case and think that [the] ideals of justice were satisfied. Indeed, they were perverted, time and time again.” In addition to the pardon and the legislature’s apology, the Groveland Four also received an apology from the Orlando Sentinel, which inflamed passions with its racist coverage of the case in 1949. In particular, the newspaper apologized for running a political cartoon as the grand jury convened, showing four empty electric chairs with the title “No Compromise!” A Sentinel editorial published the day before the pardons said, “We’re sorry for the Orlando Sentinel’s role in this injustice. We’re sorry that the newspaper at the time did between little and nothing to seek the truth. We’re sorry that our coverage of the event and its aftermath lent credibility to the cover-up and the official, racist narrative.”

Disparate Death-Penalty Rulings in Same Florida Murder Case Raise Arbitrariness Concerns

The Florida Supreme Court issued rulings in thirteen death penalty cases in the last two weeks of 2018, upholding convictions and death sentences in ten, reversing one death sentence, remanding one case for a new hearing on intellectual disability, and allowing limited DNA testing in another case. The most notable of the decisions came in the cases of Gerald Murray (pictured left) and Steven Taylor (pictured, right), decided on December 20, 2018, who were sentenced to death for the same murder and raised exactly the same challenge to their unconstitutional death sentences. Murray’s death sentence was overturned, but Taylor’s was upheld, renewing criticism that the Florida Supreme Court has arbitrarily and unfairly applied its decisions declaring that death sentences that are based on non-unanimous jury sentencing recommendations are unconstitutional.

Murray and Taylor were tried separately for the same 1990 Jacksonville burglary, sexual assault, and murder. Taylor was tried once and sentenced to death by the trial judge following a 10-2 jury recommendation for death. The Florida Supreme Court decided his direct appeal in 1993. His conviction and death sentence became final in October 1994, when the U.S. Supreme Court declined to review his case. Because of a series of constitutional errors in Murray’s case, his conviction was overturned twice and the death penalty imposed against him in another trial also was overturned. The trial judge imposed a death sentence in his fourth trial following an 11-1 jury recommendation for death. The Florida Supreme Court upheld that conviction and death sentence on direct appeal in 2009, and the conviction and sentence became final when the U.S. Supreme Court declined to review his case later that year.

In January 2016, in Hurst v. Florida, the U.S. Supreme Court ruled that the sentencing procedures under which both Murray and Taylor were tried violated Florida capital defendants’ Sixth Amendment right to have a jury determine all the facts that could subject them to the death penalty. Later that year, the Florida Supreme Court ruled in Hurst v. State that the Sixth Amendment violation could never be harmless in a case in which one or more jurors had voted for life and that death sentences based on such non-unanimous jury verdicts also violated the Florida state constitution. However, the court also decided that it would limit enforcement of its constitutional ruling to cases that became final after June 2002, when the U.S. Supreme Court first announced the Sixth Amendment right to jury factfinding in the penalty-phase of a capital trial. At that time, Justices Pariente and Perry dissented, calling the appeal cutoff date arbitrary. In her December 20 concurring opinion in Taylor’s case, Pariente called the Murray and Taylor rulings “the textbook example of the ‘unintended arbitrariness’” she had warned about in her prior dissent. “Taylor and Murray were both convicted of first-degree murder and sentenced to death after nonunanimous jury recommendations for death for the murder of Alice Vest in September 1990. Yet, only one will receive a new penalty phase. Clearly, the Court’s line-drawing for the retroactivity of Hurst creates unconstitutional results for defendants like Taylor,” she wrote.

18 Years After Enacting DNA Law, Florida Death-Row Prisoners Are Still Being Denied Testing

Florida courts have refused death-row prisoners access to DNA testing seventy times, denying 19 men – eight of whom have been executed – any testing at all and preventing nine others from obtaining testing of additional evidence or more advanced DNA testing after initial tests were inconclusive. For a six-part investigative series, Blood and truth: The lingering case of Tommy Zeigler and how Florida fights DNA testing, Tampa Bay Times Pulitzer-prize winning investigative journalist Leonora LaPeter Anton reviewed more than 500 cases in which Florida’s defendants were sentenced to death. Her investigation disclosed that even after Florida adopted a DNA testing law in 2001, court rulings have continued to create barriers to obtaining testing that could potentially prevent wrongful executions. “Almost 20 years later,” she wrote, “some prosecutors routinely fight DNA requests, especially in high-profile death row cases, and the courts often fail to intervene.” According to Innocence Project of Florida executive director Seth Miller, “[i]n 2018, it is just as hard to get post-conviction DNA testing as it was before we had a post-conviction DNA testing law, and that’s completely upside down.” 

The investigative series focuses on the case of Tommy Zeigler (pictured), who has maintained his innocence throughout the 42 years in which he has been on Florida’s death row. On Christmas Eve in 1975, Ziegler was shot and his wife, her parents, and a man who served as Ziegler’s handyman were murdered in Ziegler’s furniture store in Winter Garden, Florida. Ziegler was charged with the murders. The Times series describes the controversial trial and questionable evidence in his case in detail. Ultimately, the jury convicted Zeigler but took less than half an hour to recommend that he be sentenced to life. The trial judge overrode their decision and sentenced Zeigler to death. 

Zeigler has sought DNA testing six times. In 2001, he was granted limited testing, which, Anton reports, “appeared to support his story that he was a victim of a robbery at his furniture store.” However, even though Ziegler’s lawyers have offered to defray the entire cost of DNA analysis, Florida’s courts have refused to grant him a more advanced type of DNA testing that is now routinely available in murder cases. Ziegler’s lawyers have already presented evidence discrediting some of the key prosecution witnesses and demonstrating the implausibility that Ziegler could have shot himself through the stomach to fake his own victimization. They argue that the DNA evidence would prove his innocence and, at a minimum, transform the rest of the prosecution’s case by proving that the testimony the prosecution presented was false. 

Twenty-eight Florida death-row prisoners have been exonerated, more than in any other state. In 90% of the more than twenty exonerations for which the jury vote is known, jurors had not unanimously recommended death and had in some cases – like Ziegler’s – recommended life. Former Republican state senator J. Alex Villalobos, who helped write Florida’s DNA statute, told Anton that the law was designed to remove doubts as to guilt and that the prisoners should be given access to DNA testing. Death Penalty Information Center executive director Robert Dunham agreed, telling the Times, “If we’re interested in the truth and interested in avoiding executing the innocent, we need to be allowing this kind of testing.”

A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty

As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.

In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.

Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.

On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.

A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.

2018 Midterm Elections: Governors in Moratorium States Re-Elected, Controversial California D.A. Ousted

The results of the November 6, 2018 mid-term elections reflected America's deeply divided views on capital punishment, as voters elected governors who pledged not to resume executions in the three states with death-penalty moratoriums, defeated an incumbent who tried to bring back capital punishment in a non-death-penalty state (click on graphic to enlarge), and re-elected governors who had vetoed legislation abolishing capital punishment in two other states. Continuing a national trend, voters in Orange County, California ousted their scandal-plagued top prosecutor, marking the ninth time since 2015 that local voters have replaced prosecutors in jurisdictions with the nation's largest county death rows.

In the three states with Governor-imposed death-penalty moratoriums, candidates who said they would continue execution bans or work to eliminate the state’s death penalty won easily. Tom Wolf, the Democratic governor of Pennsylvania who imposed the state’s moratorium on executions in 2015, was re-elected by with 57.6% of the vote. His challenger, Scott Wagner, who had promised to resume executions and had advocated a mandatory death penalty for school shootings, trailed badly with 40.8% of the vote. Oregon's incumbent Democratic governor Kate Brown, who continued the state’s death-penalty moratorium instituted in 2011 by then-governor John Kitzhaber, won re-election in a six candidate field with 49.4% of the vote, five percentage points higher than her Republican challenger Knute Buehler. In Colorado, Democratic congressman Jared Polis, who campaigned on the repeal of the state’s death penalty, won the governorship with 51.6% of the vote, outpacing Republican state treasurer Walker Stapleton, who received 44.7% of the vote. Democrats also took control of both houses of the Colorado legislature, increasing the likelihood that legislation to abolish the death penalty will be considered in the upcoming legislative session. Illinois Republican Governor Bruce Rauner suffered an overwhelming election defeat at the hands of venture-capitalist J.B. Pritzker. Trailing badly in the polls, Rauner tried in May 2018 to condition passage of gun control legislation on reinstatement of the state’s death penalty. Pritzker outpolled Rauner by 54.0% to 39.3%.

On the other hand, two governors who prevented death-penalty repeal bills from going into effect in their states also won re-election. Nebraska's Republican Governor Pete Ricketts, who vetoed a bipartisan bill to abolish the state's death penalty in 2015 and then, after the legislature overrode his veto, personally bankrolled a successful state-wide referendum in 2016 to block the repeal, cruised to re-election with 59.4% of the vote. New Hampshire Republican Governor Chris Sununu, who vetoed the state’s death-penalty repeal bill in March 2018, won re-election with 52.4% of the vote. In Florida, Republican Ron DeSantis won the governorship against Democratic candidate Andrew Gillum, who had pledged, if elected, to suspend executions in Florida until he was sure the death-penalty system was nondiscriminatorily applied.

Local voters in Orange County replaced District Attorney Tony Rackauckas with a political rival, county supervisor Todd Spitzer. Rackauckas has been embroiled in a scandal involving the secret use of prison informants to obtain or manufacture confessions from suspects and then stonewalling investigation of the multi-decade illegal practice.  As of January 2013, Orange County had the seventh largest death row of any county in the U.S., and since then, it has imposed the fourth most death sentences of any county. 

Clemente Aguirre Exonerated From Florida's Death Row After DNA Implicates Prosecution Witness

With newly discovered confessions and DNA evidence pointing to the prosecution’s chief witness as the actual killer, prosecutors dropped all charges against Clemente Javier Aguirre (pictured, center, at his exoneration) in a Seminole County, Florida courtroom on November 5, 2018. The dismissal of the charges made Aguirre the 164th wrongfully convicted death-row prisoner to be exonerated in the United States since 1973 and the 28th in Florida. The announcement that prosecutors were dropping all charges against Aguirre came after jury selection for his retrial had already begun. The Florida Supreme Court unanimously overturned his conviction in 2016. “Mr. Aguirre was nearly executed for a crime he didn’t commit,” said Joshua Dubin, one of Aguirre's attorneys. “While we are overjoyed that his ordeal is finally over, the case of Clemente Aguirre should serve as a chilling cautionary tale about how dangerous it is when there is a rush to judgment in a capital case.”

Aguirre was convicted and sentenced to death in 2006 for the murder of two neighbors: an elderly woman and her adult daughter. He steadfastly maintained his innocence, saying he had discovered the women only after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. Evidence has increasingly pointed to the victims' daughter and granddaughter, Samantha Williams, as the likely perpetrator, and an affidavit filed last week undermined Williams's alibi. DNA testing had revealed Williams's blood in several locations at the crime scene but had found none of Aguirre’s blood. Williams also has reportedly confessed to the crime on at least five occasions. A sworn affidavit from the wife of Mark Van Sandt, Williams’s boyfriend at the time of the crime and her key alibi witness, says that Van Sandt told his wife he saw Williams crawling out of his bedroom window on the night of the murders. Prosecutors said that they dropped charges “based upon new evidence that materially affects the credibility of a critical State witness.”

Aguirre is an undocumented immigrant from Honduras, and his attorneys say they plan to file an asylum application on his behalf. Joshua Dubin said in a statement: “If there were ever a person that deserved a chance to become a United States citizen, it is Clemente Aguirre. He has been fully exonerated, so we are going to be asking the immigration judge to set a bond and allow Clemente to be released while his application for asylum proceeds.” Aguirre is the third foreign national to be exonerated in the last year. Gabriel Solache was exonerated in Illinois on December 21, 2017 and Vicente Benavides was released on April 19, 2018 after nearly 26 years on California's death row. Both Solache and Benavides are Mexican nationals. While there has been one exoneration for about every nine executions in the U.S. overall, there has been one exoneration of a foreign national for every 6.17 executions of a foreign national, suggesting that foreign nationals may be more likely to face wrongful convictions and death sentences than U.S. citizens.

Florida Supreme Court Upholds Death Sentence Imposed in Violation of State and Federal Constitutions

The Florida Supreme Court has upheld the death sentence imposed on William Roger Davis, III (pictured), even though Davis's death sentence violates both the Florida and federal constitutions. In a decision issued on October 25, 2018, the court refused to redress the unconstitutionality of the death sentence—imposed by a trial court judge after a bare 7-5 majority of jurors had recommended death—ruling that during post-conviction proceedings before the trial court, Davis had waived review of all claims relating to his conviction and death sentence. The appeals court held that this waiver barred Davis from renewing his challenge to the unconstitutional sentencing process on appeal.  

Davis was convicted and sentenced to death in Seminole County (Tallahassee) for an October 2009 murder, kidnapping, and sexual battery. After hearing Davis accept responsibility for the crime and testify about his mental state when it occurred, five jurors recommended that he be spared the death penalty. However, at the time of trial, Florida was one of only three states that permitted judges to impose a death sentence based upon a less than unanimous jury vote for death, and its death-penalty statute directed the trial court to make its own independent findings of fact, independently weigh aggravating and mitigating circumstances, and impose a sentence of life without parole or death. The Florida Supreme Court upheld Davis's death sentence, and in January 2016, one year after his conviction became final, the United States Supreme Court struck down Florida's sentencing procedures. In Hurst v. Florida, the court ruled that reserving the ultimate fact-finding on aggravating circumstances for the trial judge violated Florida capital defendants' Sixth Amendment right to trial by jury. In October 2018, the Florida Supreme Court ruled in Hurst v. State that this Sixth Amendment violation was prejudicial to a capital defendant whenever the jury had not unanimously recommended a death verdict, and it further held in Perry v. State that the Florida constitution required a unanimous jury vote for death before a judge could consider imposing the death penalty. 

In his state post-conviction proceedings, Davis's lawyers challenged the constitutionality of his non-unanimous death sentence. However, while the case was pending, Davis sought to withdraw his petition. In a letter to the judge, Davis wrote that he did not want a life sentence and did not want to subject either his family or the victim's family to a new sentencing hearing. The court found him competent to waive his rights, and—notwithstanding the invalidity of the proceedings resulting in his death sentence—dismissed all of Davis's guilt- and penalty-stage claims. The Davis case is the latest case in which so-called "volunteers"—capital defendants or death-row prisoners who have been deemed competent to waive their appeals—have been permitted to seek execution in the face of unreliable or unconstitutional death sentences. Volunteers comprise ten percent of all prisoners executed in the United States since the 1970s. On October 29, 2018, Rodney Berget—a former Special Olympics participant—became the 148th volunteer to be executed, despite evidence of intellectual disability that led national experts to conclude that he was ineligible for the death penalty.

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