By SUSAN CLARY
Orlando Sentinel 2/​7/​02

The archi­tects of Florida’s death-penal­ty law were caught by sur­prise when the U.S. Supreme Court stalled exe­cu­tions in the state Tuesday while the jus­tices deter­mine if laws here and in 8 oth­er states are unconstitutional.

Florida and the oth­er states affect­ed — Arizona, Alabama, Colorado, Delaware, Idaho, Indiana, Montana and Nebraska — allow a judge, rather than a jury, to decide if a crim­i­nal is put to death.

What the jus­tices do with a case out of Arizona poten­tial­ly could affect more than 800 inmates sen­tenced to die. Nearly 1/​2 of those con­victs — 372 — are on Florida’s death row in Starke.

After the Supreme Court struck down exe­cu­tions nation­wide in 1972, states began adopt­ing new laws tai­lored to sat­is­fy the court’s con­sti­tu­tion­al objec­tions to the death penal­ty. New laws in Florida were upheld by the Florida and U.S. supreme courts in 1976.

Since 1972, Florida judges have over­ruled 167 jury deci­sions to sen­tence defen­dants to life in prison and instead ordered defen­dants to death. The Florida Supreme Court has over­turned so many of those cas­es on appeal that most judges no longer over­rule a jury, though the law allows it.

“We tried to set up a statute that would be as fair and error-free as pos­si­ble,” said Judge Robert Shevin, of the 3rd District Court of Appeal in Miami, who was the state’s attor­ney gen­er­al at the time and helped to craft the laws. ​“We were able to take the posi­tion strong­ly by hav­ing the par­tic­i­pa­tion of the jury and judge and would not result in inno­cent peo­ple being exe­cut­ed. ​“Back then, the [U.S.] Supreme Court embraced our statute.”

Ray Marky, the for­mer assis­tant attor­ney gen­er­al who pre­sent­ed the state’s cur­rent death-penal­ty statutes to the state and fed­er­al courts for approval, said the Tuesday move caught him by sur­prise. ​“I’m real­ly con­fused by all this,” Marky said. ​“Perhaps the U.S. Supreme Court does not want to let any­one be exe­cut­ed in those states because it would tele­graph what they are going to do in the Arizona case before they have even heard it.”

Arguments set for April
At issue is whether the Arizona law, which allows a judge alone to decide sen­tenc­ing in a cap­i­tal mur­der case, is a vio­la­tion of the Sixth Amendment, which guar­an­tees every cit­i­zen the right to a tri­al by jury. The court will hear argu­ments in the case in April; it’s not known when a rul­ing will come.

The death penal­ty exists in 38 states. Of the nine states in ques­tion, Arizona, Idaho and Montana have sys­tems in which the judge uni­lat­er­al­ly decides the sen­tence. In Florida, Alabama, Indiana and Delaware, juries make rec­om­men­da­tions on life or death in a sep­a­rate pro­ceed­ing, but a judge makes the final call. In Nebraska and Colorado, a pan­el of judges impos­es the sentence.

Orange-Osceola State Attorney Lawson Lamar said he thinks the U.S. Supreme Court is sim­ply tak­ing pre­cau­tions in Florida while the jus­tices decide the Arizona case. ​“I think it’s pure­ly a tech­ni­cal issue and this is just a delay,” Lamar said.

Judge act­ing as jury?
The U.S. Supreme Court decid­ed to take the Arizona case as a fol­low-up to a 2000 deci­sion in which the court over­turned a hate-crime sen­tence imposed on a New Jersey man. The judge added time to the man’s sen­tence after tri­al by invok­ing a state law that allows judges to increase prison time for hate crimes. The Supreme Court found that this amount­ed to the judge act­ing as jury. In her dis­sent, Justice Sandra Day O’Connor fore­saw a spillover into the death-penal­ty are­na. Since then, scores of fed­er­al inmates have claimed that their sen­tences should be over­turned in light of the New Jersey case.

That case ​“has just swept the coun­try,” said Don West, an Orlando crim­i­nal-defense attor­ney who has han­dled dozens of cap­i­tal murder cases.

Florida may join case
Florida Attorney General Bob Butterworth may try to join Arizona in the Supreme Court case to try to main­tain the cur­rent death-penal­ty sys­tem, spokesman Joe Bizzaro said. ​“We are con­sid­er­ing [it], but no deci­sion has been reached,” Bizzaro said Wednesday. ​“Obviously, we would be pro­tect­ing the state’s inter­est top­er­mit the car­ry­ing out of capital punishment.”

The U.S. Supreme Court stayed the exe­cu­tion of Linroy Bottoson — sen­tenced to death for mur­der­ing Eatonville post­mas­ter Catherine Alexander in 1979 — just 3 hours before he was sched­uled to die Tuesday by lethal injec­tion. Hours lat­er, Gov. Jeb Bush announced he would halt today’s sched­uled exe­cu­tion of Robert Trease, 48, a Sarasota killer who does­n’t have an attor­ney and has asked to die.

A Bush spokes­woman said the gov­er­nor is tak­ing a wait-and-see atti­tude toward the Supreme Court deci­sion and declined to spec­u­late on what the gov­er­nor might do with oth­er cas­es. ​“We do not have any oth­er pend­ing death war­rants in front of us to make that deci­sion,” spokes­woman Lisa Gates said. ​“This is just a stay for Trease.”

Bush will ​‘wait and see’
Gates said the gov­er­nor’s legal staff has dis­cussed the Arizona case with the attor­ney gen­er­al, but Gates declined to say if the gov­er­nor would push a par­tic­u­lar legal strat­e­gy. ​“He thinks we should wait and see what the Supreme Court does,” Gates said. ​“They [the jus­tices] want more time to look at this. That’s why he issued those stays.”

Assistant Deputy Attorney General Carolyn Snurkowski, who over­sees all death-row appeals for the state, said the Supreme Court rul­ing could end up mean­ing only a tem­po­rary delay. ​“This is only stay­ing this case so the court can look at the case more close­ly,” she said. ​“I don’t know what’s going to hap­pen beyond that point.”