Attorneys uncertain of precedent

*Capital defense lawyers' views vary about how Supreme Court ruling could influence lethal injection executions


Statewide attorneys who have defended death-row inmates are unsure how the U.S. Supreme Court's review of a Kentucky ruling will influence how lethal injections are administered in Florida.

"It's potentially significant," Sarasota County Public Defender Adam Tebrugge said. "Legally, it appears there will be a moratorium on executions in Florida and, maybe, the country, until this case is done."

There are 385 men on Florida's death row, including eight from Lee County, six from Sarasota County, and five from Charlotte County.

Florida used lethal injection for executions since 2000, but has imposed a de facto moratorium since December after it took 34 minutes for inmate Angel Diaz to die during the procedure.

Tebrugge has represented 12 capital defendants since 1980, including Joseph Smith, sentenced to death for the 2004 murder of 13-year-old Carlie Brucia.

He said the fact that lethal injection is on the docket "means there were at least four votes in the court interested in hearing the issue."

"It could grind capital punishment to a stop -- change the protocol or think of another way to do it," said Todd Doss, a Lake City attorney who has argued against lethal injection before the U.S. Supreme Court.

Doss secured a stay of Clarence Hill's 2006 execution when the Court ruled Hill could file an Eighth Amendment claim of "cruel and unusual punishment" against lethal injection.

In subsequent rulings, the claim was dismissed. The Supreme Court voted 5-4 on Sept. 20, 2006, to deny another stay. Hill was executed four days later.

Now, Doss represents Diaz's family.

"Depending how it is administered, you can end up with an excruciating death," he said.

Marty McClain, who has worked death-row appeals in Florida for 22 years as a state Capital Collateral Defense attorney, is uncertain what precedent, if any, the case could set.

"It's hard to anticipate because the case is so broad, virtually everything is included," McClain said. "It could impact Florida greatly, or not at all. At this point, the answer to the question is nobody knows."

Others doubt the ruling will prove significant.

"The cynical part of me thinks the Court is tired of all these cases coming from all circuits and directions and will say lethal injection is just fine and dandy," said Harry Brody, a Sarasota attorney who successfully challenged the constitutionality of the electric chair "not that long ago."

"I'm suspicious," said Dr. Brooke Butler, an assistant University of South Florida professor of psychology who has researched death penalty issues extensively. "I don't think they will do anything about it -- that would be admitting they were doing it wrong all along."

Punta Gorda attorney Paul Sullivan, who defended Stephen Smith during his trial in the murder of a Charlotte Correctional Institution guard, said the ruling could have wider implications.

"I think it will serve as a useful barometer of the humanity of this Court as it is now composed," he said.

Regardless what the Court rules, Brody said it won't be "that simple." After all, he added, "If they strike this down, what happens next?"

That would pose a conundrum, agreed Larry Byrd, a former chief prosecutor and Sarasota defense attorney.

"Whether you agree with the death penalty or not, the United States Supreme Court, since its inception, has held you cannot execute someone in an inhumane way," Byrd said. "We tried the electric chair and caught people's heads on fire. We tried lethal injection and it took 30 minutes for someone to die. Maybe the answer is gas -- oh, we tried that. The only thing left is the guillotine or public hanging. We're going backward."

"I think anytime we're going to talk about how to kill people, it's really splitting hairs," Butler said.

You can e-mail John Haughey at jhaughey@sun-herald.com.


By JOHN HAUGHEY

Staff Writer