Friday, 25 September 2009

Paul Flemming: Death needs more than a simple majority

You couldn't get spinach on your pizza after E. coli-tainted shipments of the leafy stuff killed a couple people. The Cardinals won the World Series. "Basic Instinct 2," "Ice Age 2" and "Jackass 2" played in theaters. Among those who died in 2006 was an odd musical trio: Buck Owens, Billy Preston and Syd Barrett.

Clarence Hill, Arthur Rutherford, Danny Rolling and Angel Diaz also died that year. They were executed by the state of Florida.

That same year, a group assembled by the American Bar Association released a weighty tome — a literal and figurative description of the 400-plus page assessment of Florida's death penalty.

Those who labored to produce it ranged across the ideological spectrum, and its leadership was at great pains to insist — correctly — that the report did not take a position on the death penalty itself, only its administration and the many flaws in Florida's system.

"The ABA does not have a position against the death penalty," Sandy D'Alemberte, former president of the ABA and former Florida State University president, said this week. "It does have a position that the death penalty ... ought to at least be administered fairly, honestly and without discrimination."

An even dozen recommendations were put forward, ranging from reforms to address faulty witness identifications to ways of reducing ambiguous jury instructions and racial disparity in the death penalty's application.

On Wednesday, a panel gathered at FSU's Law School to follow up and get things rolling after three years of nothing.

The report "sits there, and I think that's probably its state. It sits there," said Mike Minerva, former public defender in the Second Judicial Circuit that includes Tallahassee and among the eight authors of the report.

Wednesday's coffee-and-cookies gathering of about 100 people was part of the ABA's Death Penalty Moratorium Project, an effort to get states that have capital punishment to evaluate and fix their systems before executing anyone else.

Coincidentally, Angel Diaz's 2006 lethal injection was so thoroughly screwed up that then-Gov. Jeb Bush enacted a moratorium until the state could get its act together. There were no executions for the next 18 months, though the deliberations had nothing to do with the ABA report released two months previous and everything to do with procedures to minimize the likelihood of further botched efforts.

A unanimous Florida Supreme Court, in an opinion authored by now-former Justice Raul Cantero, a Bush appointee and then the court's most reliably conservative member, called for the Legislature to require juror unanimity to recommend a death sentence. Florida is alone among the 35 states that execute prisoners in not requiring that all jurors agree to the death penalty. The ABA report also suggests the same thing.

Also in 2006, then-Rep. Bruce Kyle, a Fort Myers Republican, offered a resolution rebuking the state's Supreme Court and saying the House thought a simple majority of jurors was just dandy to condemn suspects. It passed by a voice vote.

Another 2006 highlight was a November election. Florida voters passed Amendment 3, a proposal by the Legislature to require that amendments to the state's constitution be approved by 60 percent of those casting ballots.

To recap: Changing the state's constitution is of such import that it should require three of five voters' assent to alter it. Deciding to put a person to death can be determined by a 7-5 vote.

By those standards, a jury vote recommending death wouldn't be enough, at 58 percent, to pass a constitutional amendment.

Since 1973, Florida has released 19 men from Death Row. One is Juan Melendez, convicted in 1994 and sentenced to death for a crime he did not commit. That didn't stop him from serving 18 years, eight months and one day on Death Row before justice was served and he was released in 2002.

"You can never release an innocent man from the grave," Melendez said Wednesday. "The death-penalty law is not working in the state of Florida."

Almost everything in Tallahassee is open to equivocation, debate and compromise. Not this.

Whether you support the death penalty or oppose it, it is beyond debate that its administration should be fair, just and correct.

As a bulwark to help assure that, jury unanimity must be required. Every day the Legislature does not act is a failure and a damning indictment of our state.


1 comment:

John said...

Hello! I've enjoyed reading your blog. Please check out a favorite blog of mine - Professor Leonard Birdsong, a law professor and Harvard Law grad, based out of Orlando, Florida.