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.

Read the Florida Supreme Court’s deci­sion in Davis v. Florida. See Arbitrariness.

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