Death Watch Journal (part 25)

Well, I was wrong. In my earlier posts over the past few months, I had all but said with resolute certainty that based upon the Florida Supreme Court’s October, 2016 decision in Hurst v Florida, and its subsequent decisions in which FSC repeatedly recognized the importance of the U.S. Supreme Court’s January 2016 decision declaring the way Florida has been imposing death sentences was unconstitutional, that the FSC would soon effectively throw out almost all Florida death sentences — the only exception being the relatively few who had waived a jury determination of sentence or had a clearly articulated 12 to 0 jury vote for death.

My mistake was a belief that at the end of the day the court would do the right thing — that based upon the tone of oral arguments held earlier this year a majority of the FSC would find that all illegally imposed death sentences had to be thrown out. It seemed like a classic no-brainer… if a person has been illegally sentenced to death then any subsequent execution would itself be illegal.

You’d think after all these years of repeatedly seeing our courts only too readily  speaking with a forked tongue, I would know better — that at the end of the day, when pursuing executions it’s not about the administration of justice which is inherently dependent upon principle of fundamental fairness — it’s really all about the insidious “politics of death” and in this twisted and perverse reality of administering “justice” politics will always trump justice.

On December 22, 2016 the Florida Supreme Court finally released the long awaited decisions that established the parameters in which the court will apply the Hurst v Florida decision to Florida cases.

In Mosley v Florida the FSC effectively ruled that 212 of the current 286 death-sentenced prisoners on Florida’s death row are entitled to retroactive application of Hurst  — but that another 174 are not. In Mosley the court explained at length that those sentenced to death (based on the date their direct appeal became final) after June 26, 2002 would be entitled to have their illegally imposed death sentences thrown out.

But in Mark Asay v Florida, issued at the same time, a sharply divided court explained why they will not apply Hurst to cases that were already denied on direct appeal prior to June, 2002.

What must be emphasized is that there’s no dispute that all of those sentenced to death in Florida since 1974 were illegally sentenced. That truth is no longer denied. But to justify this marginal decision to grant relief to 212 death-sentenced prisoners by fabricating this arbitrary line in the sand, while saying that they’ll just go ahead and kill the other 174 who were also illegally sentenced to death, the FSC basically said that it’s just too much trouble to grant relief to everyone, so they will limit relief to only those who were more recently sentenced to death.

In this published decision, the FSC also lifted the stay of execution on Mark Asay. He was previously scheduled for execution on March 17 — five weeks after I was scheduled (please read “Execution Day: Involuntary Witness to State-sanctioned Murder”) for February 11, 2016 — but we both received stays of execution until the court determined how they would apply Hurst.

Where does this now leave me? This is where it gets a little more complicated. In the court’s decision decision to deny relief to Mark Asay — and the other 173 — we had Chief Justice LaBarga, Justice Peggy Quince, Ricky Polston and Charles Canady vote to just go ahead and kill all those illegally sentence to death prior to 2002, while Justices Pariente and Perry strongly protested, arguing that to carry out the executions of those who were unquestionably sentenced to death in violation both the Florida and Federal constitutions would be fundamentally unfair and violate the constitutional prohibition against the infliction of cruel and unusual punishment. But Justice Lewis wrote a separate opinion in which he said that Mark Asay would not be entitled to retroactive relief under the limited circumstances of his case, but that in other cases in which the death-sentenced prisoner did previously raise the substance of this legal argument prior to 2002, they should be entitled to retroactive relief.

Although there were  four justices (a majority) ruling against pre-2002 retroactive application in the Asay case (LaBarga, Canady, Polston and Quince), in my own case Justice Peggy Quince is disqualified as she worked as part of the prosecution team. That means she cannot rule on my case — that also means that my case is split 3 to 3 vote, with half the court saying they want to kill me with the other half saying that because I was illegally sentenced to death I’m entitled to relief.

Problem is, the Florida constitution requires all legally binding decisions to be decided by a minimum of four votes — what they call a “quorum,” and so unless they grant relief on my other pending DNA/actual innocence claims, making the illegal death sentence issue moot, the most likely scenario is that after Justice Perry retires this week (December 31, 2016) the newly appointed Just Charles Lawson is sworn in within the next few weeks. That means my case will then be decided by the newly appointed justice — who has already vowed to vote consistent with the ultra conservative, pro death penalty justices Canady and Polston. See, “Scott picks Lawson for Florida High Court” by Brendan Farrington, the Lakeland Ledger, Saturday, December 17, 2016.

What this means is that when my case is finally decided after newly appointed Justice Lawson is formally sworn in, they will undoubtedly vote against me by a 4 to 2 vote, with LaBarga, Canady, Polston and Lawson voting to kill me while Justices Pariente and Lewis will vote that my death sentence was illegal so my sentence must be thrown out.

How long this will take, nobody really knows. It appears that before Justice Lawson can actually join the court in deciding my case, the entire case should be reheard — new arguments filed and then decided. But then again, they may not, and allow the case to be quickly decided based on the existing record.

When they do, it’s all but certain the Florida Supreme Court will then lift my stay of execution and Governor Scott will reschedule my execution soon after. For the fourth time I will face imminent execution. I do still have a substantial “actual innocence” appeal pending in the Federal courts, so I’m reasonably confident that even if rescheduled for execution and being moved back down to death watch, I would get another stay of execution. And the Florida Supreme Court’s decision to kill the 174 of us illegally sentenced to death would also be subject to U.S. Supreme Court review. If the USSC will accept review.