Appeal Imperils Florida Death Penalty

Appeal imperils Florida death penalty

By: JAY WEAVER
Miami Herald
Feb. 7, 2002

An Arizona death penalty case could have profound ramifications for nine states -- including Florida, with its 372 Death Row inmates -- and might lead to major changes in how sentences in first-degree murder trials are meted out.

Already within the last two weeks, the U.S. Supreme Court has postponed two Florida executions, the latest one Tuesday.

At the root of the issue: Ring v. Arizona, a 1994 trial of an armored van robber who was convicted of murder by a jury and sentenced to die by a judge.

If the high court rules in favor of the convicted Phoenix murderer, Timothy Ring, then all 795 Death Row inmates in those nine states could have their sentences commuted to life or they might get new sentencing hearings. State legislators might also have to change their death sentencing laws.

In the simplest terms, the Supreme Court must decide whether a state jury or judge should decide if defendants found guilty of first-degree murder should face a life sentence or the death penalty.

In Arizona, the trial judge makes that call while considering mitigating and aggravating circumstances, without input from a jury. In Florida, the judge also has final say, but the jury beforehand makes a recommendation.

''I think they will want to hit this one head on,'' said Miami lawyer Gerald Kogan, a former Florida Supreme Court justice who has openly questioned the effectiveness of the death penalty in Florida. ``They have taken this case to make a definite statement -- should that authority lie with the jury, or should it lie with the trial judge?''

Attorneys representing Death Row inmates are watching the case anxiously.

''If Ring loses, we're in the status quo,'' said Todd Scher, a Fort Lauderdale lawyer with the Capital Collateral Regional Council, a state agency that handles death sentence appeals. ``If Ring prevails, there is the possibility of flat-out commutations to life because the statute is unconstitutional.''

PROCESS QUESTIONED

The Supreme Court has accepted the Ring v. Arizona case for oral arguments in April because it raises constitutional questions about the process of imposing the death penalty in that state. The constitutionality of the death penalty, which exists in 38 states, is not at stake, said Phoenix attorney John Stookey, who filed the Ring petition with the Supreme Court.

In addition to Arizona and Florida, the other states affected by the high court case are Idaho, Montana, Alabama, Indiana, Delaware, Colorado and Nebraska.

THREE WERE CHARGED

Ring was charged with participating along with two others in the robbery of an armored van in Phoenix. A jury found him guilty of first-degree murder because the van driver was shot and killed during the robbery. Ring's maximum statutory penalty, based on the jury's verdict, was life imprisonment.

But the presiding judge conducted a separate sentencing hearing to determine whether certain facts justified imposing the death penalty. At that hearing, an accomplice with a plea bargain testified that Ring led the planning of the robbery, shot the van's driver and later asked to be ''congratulated'' on his shot. The accomplice had not testified at Ring's trial, however.

After the sentencing hearing, the judge imposed the death penalty, saying Ring masterminded the robbery and killed the driver for the money in the van. The judge also concluded that Ring acted in a ''heinous'' and ''depraved'' manner when he allegedly asked to be congratulated on his shot.

In papers filed with the Supreme Court, the Ring case spotlights two earlier high court decisions that are potentially in conflict.

In Walton v. Arizona, a split Supreme Court found in 1990 that a trial judge's sole responsibility to determine a convicted murderer's death sentence does not violate the defendant's due process right to a trial.

OTHER CONCLUSION

A decade later, the 5-4 high court reached a different conclusion in a nondeath-penalty shooting case, Apprendi v. New Jersey. The majority ruled that the facts used to increase the defendant's sentence by a judge should have been presented to a jury at trial -- and proved beyond a reasonable doubt.

While the defendant was subject to a 10-year sentence in the racially tainted shooting, the judge made it 12 years in the sentencing hearing after finding that it was a hate crime -- a factor never considered by jurors.

In 2000, Justices John Paul Stevens and concurring Justice Clarence Thomas distinguished Apprendi from the earlier Walton case by saying trial judges can make factual determinations that result in the death penalty.

But Justice Sandra Day O'Connor, who dissented in Apprendi, said the distinction was ''baffling.'' She wrote: ''If the court does not intend to overrule Walton, one would be hard-pressed to tell from the opinion it issues'' in Apprendi.

CHANCE TO CLARIFY

That apparent confusion over those two earlier rulings could persuade the Supreme Court to clarify its stand with the Ring v. Arizona case.

''There's a conflict,'' said Raag Singhal, a Fort Lauderdale attorney who handles Death Row cases. Singhal, like others interviewed for this story, said the vote will probably be close.

Singhal said the Ring case could turn out to be like the Supreme Court's 1972 landmark decision in Furman v. Georgia, which found that capital punishment was unconstitutional because of the disparity in how it was meted out based on race and other factors. That ruling led to the commutation of all Death Row prisoners.

''Their decision [in Ring] would have a tremendous impact in Florida,'' he said. ``If the sentencing scheme is unconstitutional, then everyone on Death Row has been placed there because of an unconstitutional statute.''

Because of the Ring case, Gov. Jeb Bush, an advocate of the death penalty, signed an order Wednesday delaying today's planned execution of Robert Trease.

The justices granted a reprieve Tuesday to Florida Death Row inmate Linroy Bottoson just three hours before he was scheduled to die.


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