Death Watch Journal (part 18)

As I write this, it's been about 3 months since, only days before my then scheduled execution, the Florida Supreme Court issued a temporary stay of execution in light of the January 2016 United States Supreme Court decision in Hurst vs State (which for those who do not already know, declared that the process that Florida has utilised to sentence people to death was unconstitutional) as they debate whether Hurst must apply to all cases, including my case - what is technically called "retroactive application".

This issue remains as yet undecided, and even some of the best legal minds continue to be confused. Common Sense would seem to dictate that if the highest court in the country has declared the Florida process to be illegal then anyone sentenced under this process has been illegally sentenced to death and the only logical conclusion is that an illegally obtained sentence of death must be vacated.

But we're talking about the death penalty which exists primarily to appease societies thirst for vengeance not the more noble pursuit of justice, so basic principle of common sense simply don't apply.


If the average citizen does something illegal, they call it a crime and impose consequences. But if the legal system commits an act that is shown to be illegal then it is conveniently labeled a "technicality" and the courts will debate whether or not the consequences are necessary under their own interpretation of the "interest of justice". I guess it's just anotherperverse twist of that saying "do-as-i-say-not-as-i-do".


What all this comes down to is in this past generation of America's "war on crime" our legal system has devised its own set of politically motivated rules to protect this corrupt legal system from accountability. In this fanatical pursuit of vengeance the ends justify the means and the objective is to expedite executions not struggle with "technicalities" that might stand in the way.


The state of Florida has taken the position that the Supreme Court's ruling in Hurst does not affect any capital cases. In the numerous cases already addressed by the Florida Supreme Court, including my own, the state has categorically insisted that Hurst cannot apply. Bottom line, Florida would have the courts believe that the Hurst decision was merely a rhetorical refinement of technical statutory construction even though on March 7th, 2016 the Florida legislature itself rewrote Florida's death penalty laws, recognizing that the previous statute authorizing imposition of death as a punishment was invalid.
 

                                                                            

What the courts continue to struggle with is whether  this Hurst v Florida decision must be "retroactively" applied - meaning whether it must be applied to capital cases in which the sentence of death has already previously been affirmed on appeal, such as my own case.

Why would this be complicated? Because our courts have adopted technical rules that prohibit retroactive application of "new law" under applicable Federal law as specifically set forth in Summerlin vs. Schiro (2003), the Hurst decision (which is itself an extension of Ring versus Arizona) cannot be applied retroactively because by a marginal majority of 5 to 4 in Summerlin the Supreme Court declared that Ring/Hurst is a procedural refinement as opposed to announcement of substantive law.

However, in my case, and all others already heard, the argument is that this Federal law prohibiting retroactive application under Summerlin cannot apply as long established law recognizes that Federal constitutional law merely establishes what is minimally required and each state is constitutionally entitled to establish its own laws providing even greater protections....and Florida law has exercised that perogative by established the Witt v State standard of law defining when a new rule of law must be retroactively applied.

As evidenced by the legal briefs filed, and the May 5 "oral arguements" held before the Florida Supreme Court, the Florida Attorney General has reluctantly accepted that whether or not Hurst versus Florida is retroactively applied will be decided under Florida's own law and not federal law..and that under applicable state law it is almost certain that the Hurst vs. Florida decision will be retroactively applied to all Florida cases.

So, now the Florida Attorney General has focused its argument on why the Florida Supreme Court should not grant relief to any case. Their argument now insists that rather than vacate even one death sentence, the Court should instead conduct its own "harmless error analysis" to determine, based upon subjective speculation that each and every jury that previously sentenced every person on death row to death

would have found at least one statutorily defined "aggravator" required before a person is eligible for death so any failure to comply with constitutional law is "harmless".

But we do kill people based on speculation, or is something more then what amounts to a guessing game required? It would appear that a majority of the Florida Supreme Court is inclined to reject any such "harmless error" analysis.

But even that is speculation as during the height of the death penalty popularity when politicians won elected office by completing to see who would kill more people Florida (and most other states, as well as the federal government) passed laws significantly expanding the stationary defined "aggravating circumstances" that makes a capital defendant eligible for death to now include almost every conceivable circumstance any murder is committed.

My own case will undoubtedly address this issue - because there were two victims, under Florida law the "aggravating circumstance" of "previously convicted of a violent felony"was applied that the Florida Attorney General now argues makes Hurst versus Florida inapplicable to my case because by finding me guilty of both alleged "murders" in the guild face, the jury implicitly found this aggravating circumstance beyond a reasonable doubt, even though in my case during the penalty phase my jury was actually instructed that this particular aggravator did not apply as it was never previously convicted of any violent crime, but only the sentencing judge subsequently applied this aggravator by finding that each count justified application to both counts, hence making one statutarily eligible for death.

If the Florida Supreme Court adopts this arguement that my case and most others will be denied relief. And not only those cases like mine that in which the question of retroactive application was the determinative factor, but many of even the most recent cases - for example, the majority of capital cases are prosecuted under the theory of "felony murder" not actually premeditated intent to kill. What this means is that the victim died as a result of actions or events attributable to the commission of an underlying felony such as robbery, burglary, arson - or other.

So, if during the guilt phase of the trial the jury finds the defendant guilty of felony murder and a crime enumerated by statute, then the Attorney General insists that Hurst v Florida cannot apply, even if the jury did not subsequently recommend a sentence of death by unaminous vote, or specifically identify any of the statutorily defined aggravating circumstances required to be found before a sentence of death can be imposed.

If the Florida Supreme Court adopts this arguement, then the Hurst v Florida would apply to very few cases and Florida's machinery of death will continue to grind it's gears on the bones and flesh of those illegally condemned to death - the ends justify the means and it's about appeasing societies thirst for vengeance, not administering justice.

Finally, assuming that Hurst v Florida must apply retroactively to all Florida cases, as it would appear that it must, and a majority of the Florida Supreme Court rejects the Attorney General arguements that the Court can simply conduct its won subjective speculation as to "harmless error" and categorically deny application of Hurst v Florida to cases which a statutory aggravator was implicitly found by virtue of the jury's finding of guilt, then the final question is whether those entitled to relief under Hurst v Florida are entitled to an automatic reduction of death sentence, to life, or the case must be remanded to the trial court for a new sentencing trial so that a new jury can determine whether a sentence of death is appropriate under the new 2016 statutes.

But that then generated debate by the Court as to whether Florida's recently adopted law allowing for a sentence of death to be imposed by merely a 10-2 jury vote ("super majority") is even itself unconstitutional - the vast majority of states allowing the death penalty require no less than an unanimous jusry vote before a death sentence can be imposed.

Because the question of whether Florida's recently adopted 10-2 law is itself constitutional now that it will impact those entitled to new sentencing under Hurst v Florida, it is unlikely the Florida Supreme Court will decide any of these cases until it first addresses that issue - and it has already scheduled "oral arguements" on that issue for next month (June). If this 10-2 law is found to be unconstitutional, then all of this could easily drag out until at least next year, as the Florida legislature would be required to yet again rewrite Florida's death penalty laws....and then the subsequent challenge to the newly rewritten laws.

In conclusion, it would appear that this issue will not be resolved anytime soon but will continue to drag out for at least a few more months and possibly even years. Until that time I will remain on "death watch" and under that uncertainty of whether I will live or die.

You can watch video interviews of me with various recent media sources here, not only addresing the Hurst v Florida issue, but addressing my substantiated claim of innocence, too. The videos are also available to watch at the right side of this blog.