Florida Capital Punishment Ruling Could Clog State Appeals Courts

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By Jessica DaSilva

Two Dec. 22 death penalty cases from the Florida Supreme Court have effectively specified a cut-off date for challenges under a U.S. Supreme Court case that overturned Florida’s capital sentencing scheme ( Asay v. State , 2016 BL 428654, Fla., No. SC16-223, 12/22/16 and Mosley v. State , 2016 BL 428542, Fla., No. SC14-436, 12/22/16 ).

Those decisions could wind up clogging Florida’s appellate court system, according to Robert Dunham, executive director of the Death Penalty Information Center.

Florida boasts about 400 prisoners on death row, Dunham said. The decisions will call about 200 of those sentences into question, which Dunham said will result in a huge financial and emotional toll on the state.

“Florida doesn’t have enough prosecutors, defense attorneys, or judges to hear these new capital sentencing hearings and, at the same time, continue the day-to-day operations of the courts,” Dunham said. “You’re looking at millions and millions of dollars that will have to be spent.”

In Hurst v. Florida (2016 BL 7258, Fla., No. 14-7505, 1/12/16 ), the U.S. Supreme Court overturned Florida’s sentencing scheme because it violated the court’s binding precedent in Ring v. Arizona (536 U.S. 584, U.S., No. 01-488, 6/24/02 ), holding that death sentences imposed by non-unanimous juries or via judicial overrides violated the U.S. Constitution. Both options were available under Florida’s death penalty laws.

The Dec. 22 cases delineate the retroactivity of that ruling, finding that only defendants who received capital punishment after the 2002 decision in Ring may challenge their sentences. Mark James Asay’s sentence was imposed before 2002, so his claim was denied. But John Franklin Mosley’s claim was granted because the sentence was imposed after 2002.

Florida to Apply for Rehearing

In a series of e-mails to Bloomberg BNA, Florida Attorney General Press Secretary Kylie Mason told Bloomberg BNA that no one from the office was available for an interview, but restated the cases’ rulings and said Asay has until Jan. 6 to file further litigation with the Florida Supreme Court.

Mason also wrote that the Florida Attorney General planned to apply for a rehearing in Mosley’s case by Jan. 6, but neither confirmed nor denied whether the agency had a contingency plan on how it would approach resentencing for the potential onslaught of appellate filings if the ruling in Mosley’s case stands.

‘Nothing Magical’ About Ring

Dunham said that generally, only 16 percent of death penalty sentences end up with an execution, with the rest resulting in an overturned conviction. That means the majority of capital sentences are imposed in an unconstitutional manner, he said.

In Florida’s case, he said all 400 death sentences were imposed in violation of the Constitution because the original death penalty statute did not comply with due process.

“There is nothing magical about the date on which Ring was decided,” Dunham said. “The death penalty trials were equally unfair beforehand. Now the arbitrary date of when a death row prisoner’s lawyer finished their appeal determines whether they live or die.”

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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