Florida

Florida

OUTLIER COUNTIES: Duval, Florida--Controversial Prosecutor, Inadequate Defense, Systemic Death Penalty Problems

Between 2010 and 2015, only 16 counties in the United States imposed five or more death sentences. Duval County, Florida, which consistently ranks among the most punitive death sentencing counties in the country, sentenced 25 capital defendants to death. According to a new report released by the Fair Punishment Project at Harvard University, Duval produced roughly one-quarter of the death sentences imposed in Florida during that period, although the entire Jacksonville Standard Metropolitan Statistical Area -- which includes Duval County and four other counties -- accounts for only about 9% of the state's murders. The Fair Punishment Project says the county's death-sentencing rate per homicide "is more than 40 percent higher than in the rest of the state." The county's prolific death-sentencing practices are attributable to a constellation of outlier practices. Only two states, Florida and Alabama, allow death sentences to be imposed without a unanimous recommendation for death by the sentencing jury. Since 2006, 88% of the 25 Duval death sentences reviewed by the Florida Supreme Court on direct appeal had non-unanimous jury recommendations. A second key factor is the county's prosecutor, state attorney Angela Corey (pictured), of whom The Nation asked, is she "the Cruelest Prosecutor in America?" In a piece for The New York Times, Emily Bazelon focused on Corey to explain the county's heavy use of the death penalty, saying that she "has made her reputation, in part, by winning verdicts that carry the death pen­alty." Bazelon writes that Corey "has one of the highest rates of death sentences in the country, with 24 (19 in Duval) in the eight years since she was elected." Corey has said "[i]t’s my statutory and constitutional duty to seek justice for this community and to give the victim’s family justice," but she is currently pursuing a death sentence against James Rhodes for the murder of Shelby Farah, despite strong opposition from Farah's family. The county's death sentences are also clouded by racial bias. The Fair Punishment notes that, since 2010, 87% of death sentences in Duval were imposed against Black defendants, up from 62% over the preceding two decades. Duval County Judge Mark Hulsey, who presided over the 2012 capital murder trial of a black teenager, Terrance Tyrone Phillips, is the subject of ethics charges after he allegedly told a staff member he "wished all blacks could be sent back to Africa on a boat." Analysts also fault substandard defense representation for affirmatively contributing to Duval's overproduction of death sentences. In 2008, Matt Shirk, the county's newly-elected public defender, a former intern of Corey's who had pledged fiscal responsibility and to "never call a cop a liar," slashed the office's budget and fired 10 lawyers, including senior capital litigators. The Nation reports, "Shirk has boasted that he consistently returns money to the state earmarked for the investigation of mitigation evidence for death-penalty clients." He then installed as his deputy and chief of homicide, Refik Eler, who the Fair Punishment Project reports had been defense counsel "on at least 16 cases that resulted in a death sentence." Courts have found that Eler has provided substandard representation in three capital cases, with a fourth ineffectiveness claim recently argued in the Florida Supreme Court. Both Corey and Shirk face challenges in the August 30 Republican primary election, but neither office has a general election challenger.

New Poll Finds "Strong Majority" of Floridians Prefer Life Without Parole Over Death Penalty

A recent poll by researcher Craig Haney, a Professor of Psychology at the University of California - Santa Cruz, has found that a "strong majority" of Florida respondents prefer life without parole to the death penalty for people convicted of murder, even as many harbor continuing misconceptions about capital punishment that would predispose them to support the death penalty. In Haney's survey of more than 500 jury-eligible respondents who were asked to choose between Florida's statutorily available sentencing options, 57% chose life without parole, while 43% chose the death penalty, as the appropriate punishment for a person convicted of murder. The preference for life held true, Haney said, across racial groups, genders, educational levels, and religious affiliation. The Florida results are consistent with recent polls in other death penalty states, such as Kentucky and Oklahoma. Dr. Haney found that Floridians held two common misconceptions about the death penalty that affected their views on the issue: 68.9% mistakenly believed that the death penalty was cheaper than life without parole, and 40.2% mistakenly believed that people sentenced to life without parole would be released from prison. Haney said "support for the death penalty plummeted" to 29% if the life sentencing option was combined with a requirement that these prisoners be required to pay restitution to victims' families. In addition, when Floridians were given the option of diverting the $1 million per case currently spent on the death penalty to investigate unsolved rapes and murders, only one quarter still supported capital punishment. Dr. Haney's research also found that a majority of Floridians oppose the death penalty for defendants with serious mental illness, do not believe the death penalty is a deterrent, and agree that most religious opinion opposes capital punishment. Haney said asking people simply if they support the death penalty is inadequate because "[t]hat question offers a limited and often flawed snapshot of voter attitudes, capturing only abstract support or opposition, but failing to expose strong preferences and deeper pragmatic thinking."

Second Florida Trial Court Strikes Down State's Death Penalty Statute

A second Florida trial court has ruled that the state's new death penalty statute is unconstitutional. On June 9, Hillsborough County Judge Samantha Ward barred prosecutors from seeking death against Michael Edward Keetley, saying that the state's death penalty statute violated the Sixth Amendment to the U.S. Constitution. Judge Ward said that the Florida legislature's changes to the sentencing law after the U.S. Supreme Court had declared the old statute unconstitutional in Hurst v. Florida, created an additional set of constitutional problems. Hurst held that the Florida sentencing statute impermissibly permitted the judge, rather than the jury, to determine whether the prosecution had proven each fact necessary to impose the death penalty. In response to Hurst, the legislature passed a new law that permitted the court to impose a death sentence only if the jury unanimously found at least one aggravating circumstance that would make the defendant eligible for the death penalty and then recommended a death sentence by a vote of at least 10-2 after determining that the aggravating circumstance were sufficiently serious to justify a death sentence and outweighed any mitigating circumstances. Judge Ward said that, under the new sentencing scheme, the jury's weighing of aggravating and mitigating circumstances constituted a fact-finding necessary before a death sentence could be imposed. She wrote, "it defies logic, and the dictates of [the Sixth Amendment], to have the jury find one of the prerequisites unanimously and beyond a reasonable doubt (that at least one aggravating factor exists), but not the other two prerequisites (that sufficient aggravators exist and that they outweigh the mitigating circumstances). Hurst specifically stated '[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.'" Judge Ward is the second Florida judge to find the new statute unconstitutional: one month earlier, on May 9, Miami-Dade Circuit Judge Milton Hirsch also struck down the law, ruling that the portion of the statute permitting the court to impose the death penalty without a unanimous jury vote for death violates the state constitution. 

Florida Court to Hear Argument on Impact of U.S. Supreme Court Ruling Declaring Death Penalty Process Unconstitutional

On May 5, the Florida Supreme Court will hear oral argument in the case of Timothy Hurst, whose death sentence was overturned in the U.S. Supreme Court's decision Hurst v. FloridaThe state court must determine whether the high court's ruling, which struck down Florida's sentencing scheme, entitles Hurst to a new sentencing hearing, reduces his sentence to life without parole, or requires some other outcome. The case may also decide how the Hurst ruling will affect the nearly 400 people on Florida's death row. Hurst's attorneys say he should have his death sentence reduced because, "persons previously sentenced to death for a capital felony are entitled to have their now-unconstitutional death sentences replaced by sentences of life without parole." That position received support in an amicus brief filed by three former chief justices of the Florida Supreme Court, a former state representative, a former prosecutor, and past presidents of the American Bar Association. The justice and legal experts argue that  Hurst "held Florida's death penalty statute unconstitutional," and that in such circumstances Florida law requires all death sentences imposed under the statute to be reduced to life without parole. The state attorney general's office has argued that state law requires blanket imposition of new sentences only if the death penalty itself is declared unconstitutional, and that Hurst only declared Florida's method of imposing the death penalty unconstitutional. Florida has the nation's second-largest death row, with 396 people as of January 1, 2016, before the state legislature rewrote the sentencing procedure to require a unanimous jury finding of at least one aggravating circumstance, and at least a 10-2 vote to impose a death sentence.

U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing Procedure

The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury. 

Florida Judge Sentences Man to Death Under Sentencing Law That Supreme Court Ruled Unconstitutional

A Florida trial judge in St. Lucie County sentenced Eriese Tisdale to death on April 29 for the killing of a sheriff's sergeant, relying on sentencing procedures from the version of Florida's death penalty law that the U.S. Supreme Court declared unconstitutional in Hurst v. Florida. The jury in Tisdale's case considered the evidence in the penalty phase of Tisdale's trial under the old Florida law, voting 9-3 to recommend a death sentence without specifying the aggravating factors that would make Tisdale eligible for the death penalty. The Supreme Court struck down Florida's sentencing procedure in Hurst because a judge, rather than a jury, made the factual determination of aggravating circumstances that were necessary to impose a death sentence. In response to Hurst, Florida enacted a new law, which went into effect March 7, requiring juries to make unanimous determinations of aggravating factors, and preconditioning any death sentence upon a jury vote of at least 10-2 vote in favor of death. The statute declares "If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole." In those circumstances, the law states, "the court shall impose the recommended sentence." Tisdale's penalty phase was tried in October 2015, before the Supreme Court declared the sentencing procedures unconstitutional, and the jury's 9-3 recommendation for death came before the new law adopted the 10-2 requirement. His lawyers argued that he could not be sentenced to death because the old procedures were unconstitutional and the jury vote did not qualify as a death recommendation under the new law. But a St. Lucie County judge ruled that the jury's unanimous vote to convict Tisdale for the murder of a law enforcement official amounted to a unanimous finding of an aggravating circumstance, accepted the jury's 9-3 death recommendation, and sentenced Tisdale to death. Tisdale is the first person sentenced to death in Florida since the new law went into effect.

Florida Legislature Passes Bill Requiring Agreement of 10 Jurors Before Judge May Impose Death Sentence

UPDATE: Gov. Rick Scott signed the bill into law on March 7. Previously: The Florida legislature passed a bill on March 3 to restructure its death penalty statute in response to the U.S. Supreme Court's ruling in Hurst v. Florida, which declared the state's death penalty procedures unconstitutional. The bill modifies Florida's practice of permitting judges to impose death sentences without the unanimous agreement of jurors by requiring that at least ten jurors recommend death before the judge may impose a death penalty. It also directly addresses Hurst by requiring that jurors unanimously find any aggravating circumstances that the prosecution seeks to prove to make the defendant eligible for the death penalty. Previously, Florida judges made the determination whether the prosecution had proven aggravating circumstances that made the defendant eligible for the death penalty, and the statute permitted the judge to impose death based upon a simple majority recommendation or, in certain circumstances, when the jury had recommended life imprisonment. The new 10-2 requirement matches the standard applied in Alabama. Along with Delaware - which permits the court to impose death after a simple majority recommendation by the jury - these states stand alone in the country in allowing a death sentence after a jury's non-unanimous sentencing recommendation. Delaware and Alabama still permit judicial override. Delaware's system is currently under review by that state's highest court, and on March 3, an Alabama circuit court judge declared that state's sentencing procedure unconstitutional.

Mother of Murder Victim: "The Death Penalty Would Inflict Additional Pain on Us"

Duval County, Florida prosecutors are seeking the death penalty for the 2013 murder of Shelby Farah (pictured), over the objections of Ms. Farah's family. After unsuccessful attempts to persuade prosecutors to non-capitally resolve the case, Darlene Farah, Ms. Farah's mother, publicly expressed her views in a recent column in TIME. Farah said, "I do not want my family to go through the years of trials and appeals that come with death-penalty cases." Instead, she wants her family to be able to, "celebrate [Shelby's] life, honor her memory and begin the lengthy healing process." Darlene Farah says her daughter would not have wanted the death penalty to be sought on her behalf, and "more killing in no way honors my daughter’s memory or provides solace to my family." Duval County is among the 2% of U.S. counties that are responsible for a majority of U.S. death sentences and is represented by a prosecutor's office that has sent more people to death row since 2009 than any other prosecutor's office in the state. Farah has asked prosecutors to accept the defense offer to plead guilty to all charges, but she says "[prosecutors'] desire for the death penalty in my daughter’s case seems so strong that they are ignoring the wishes of my family in their pursuit of it." Farah said the use of the death penalty is impeding the healing process: "Death-penalty cases are incredibly complex and drawn-out. It’s been two and a half years since my daughter’s murder, and the trial hasn’t even started...[W]e can’t start to heal and move beyond the legal process, which never seems to end." "I have seen my family torn apart since my daughter’s murder, and the idea of having to face the lengthy legal process associated with a death-penalty case is unbearable. We have endured enough pain and tragedy already."

Pages