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Click HERE to see the lawsuitOct. 9, 1998--
Religious leaders asked the Florida Supreme Court Friday to block a constitutional amendment allowing the state to execute prisoners by other means if the electric chair is banned.
The 75-year-old chair, nicknamed "Old Sparky," has come under scrutiny since a mishap caused flames to leap from the head of a man during his execution in 1997. It was the 2nd time in 10 years that flames erupted from a prisoner's head during a Florida execution.
On Tuesday, the human rights group Amnesty International highlighted the problems with Florida's electric chair in a 153-page report calling for reform of the U.S. penal system and abolition of the death penalty. It said the death penalty had become "a political campaigning tool."
Friday's lawsuit asks the Florida Supreme Court to pull the "Preservation of the Death Penalty" amendment off the Nov. 3 ballot on grounds that the title and summary are misleading.
The amendment would permit Florida to carry out executions by any method not prohibited under the U.S. Constitution.
Plaintiffs' attorney Randall Berg said the ballot language misleads voters to believe the death penalty would be abolished if the referendum fails.
"The death penalty is not extinct. It continues to exist in Florida and it (the language) misleads people into believing that unless they vote for it, the death penalty is in danger," Berg said.
The 8 plaintiffs include the Rev. Dr. James Armstrong, past president of the National Council of Churches; Thomas Horkan, general counsel for the Florida Catholic Conference; and Kathy Barber Hersh, a representative of the South East Yearly Meeting of Friends or Quakers.
They belong to religious groups that have opposed the death penalty regardless how it is carried out.
The Florida Supreme Court ruled 4-3 last year that the state could keep using the electric chair, despite a dissenting justice's opinion that the chair was "a dinosaur...befitting the laboratory of Baron Frankenstein."
Spurred by the closeness of the vote and the dissenting justices' words, the Florida Legislature enacted a law earlier this year allowing executions to continue by lethal injection if the state Supreme Court ever rules that the electric chair unconstitutionally inflicts cruel and unusual punishment.
Berg said that law makes the pending amendment unnecessary. He said the amendment would also give the legislature sole authority to determine what crimes are punishable by death. At present, the legislature makes that decision but it is subject to review by the governor and the state courts.
The amendment also changes the state constitution to prohibit "cruel and unusual" punishment, rather than the current and more broad "cruel or unusual" punishment, he said.
"It makes a significant difference," he said. "It may be cruel, let's say to draw and quarter somebody or cut off their hands for shoplifting. That may be cruel but it may not be unusual, depending on where society is at the time."
One of the sponsors of the bill that put the amendment on the ballot, state Rep. Tom Feeney, a Republican, said it was aimed at preventing appointed judges from usurping the power of voters and legislators.
"We are concerned about an activist Florida Supreme Court that would like to substitute its political judgment for that of elected representatives and the will of the people," said Feeney, from the central Florida town of Oviedo.
"We have a number of justices who both in formal opinions and informal comments have said to one extent or another that the death penalty, in their opinion, ought to be reviewed or repealed."
Berg said the ambiguous wording of the amendment should also trouble death penalty supporters as well because it could lead to a flurry of court challenges that delay executions.
(source: Reuters)
10-10-98---
The death penalty seems alive and well in Florida: 4 killers were
executed this spring, a year after a foot-long flame erupted during
the electrocution of Pedro Medina.
But lawmakers feared the sentences of inmates on death row -- now home
to 371 condemned killers -- could be reduced to life in prison if a
future court finds electrocution is unconstitutional.
So on Election Day voters face a proposed amendment that begins
"Preservation of the Death Penalty."
The amendment, 2nd of 13 on the ballot, would allow any execution method
that the U.S. Supreme Court allows and says death sentences could not be
reduced to life in prison if the state's execution method is overturned.
However, several religious leaders Friday asked the state Supreme Court
to keep the measure off the ballot. The group includes the Florida
Catholic Conference and the leaders of the Florida Council of Churches,
as well as a Methodist minister, a Quaker leader and pastors of other
Christian denominations.
"It misleads the public into believing that the amendment is needed
because the death penalty...is in peril, which it is not," said Thomas
Horkan Jr., a lawyer for the Catholic conference.
The last time the high court deleted a constitutional amendment proposed
by lawmakers was in 1982.
Rep. Victor Crist, a Temple Terrace Republican who sponsored the
amendment, called the request "a last-minute desperate attempt" that
could jeopardize the death penalty if successful.
But another key lawmaker, Senate Majority Leader Locke Burt, said the
death penalty won't be killed if the measure is somehow defeated despite
wide public support for capital punishment.
"The governor is going to continue to sign death warrants; we're going
to continue to execute people," Burt, R-Ormond Beach, said.
The amendment probably wouldn't be on the ballot if fire hadn't erupted
during Medina's execution in March 1997, prompting a legal challenge to
the state's 75-year-old electric chair.
The state Supreme Court upheld use of the electric chair in a 4-3
decision last fall. However, 5 of the 7 justices urged state lawmakers
to consider allowing lethal injection as well as electrocution. And 2
of the justices warned such a step might "avert a possible
constitutional `train wreck' if this or any other court should every
determine that electrocution is unconstitutional."
State lawmakers took that warning seriously and responded by doing 2
things. First, they passed a law designating lethal injection as the
backup method of execution if the electric chair is ever ruled
unconstitutional. Second, they approved putting a constitutional
amendment on the Nov. 3 ballot.
Larry Spalding, who oversaw Florida's statewide office of death row
attorneys from 1985 through 1993, said the true purpose of the
amendment is to protect the electric chair that Florida has used since
October 1924.
Now a lobbyist for the American Civil Liberties Union, Spalding warned
that the passage of the amendment could lead to even more litigation
and delays.
Pending 'train wreck' Burt cited the warning from the state Supreme
Court about a possible "constitutional train wreck" and a 1927 ruling
from Florida's high court after the state switched from hanging to
electrocution.
1 condemned killer filed an appeal arguing that being hanged was
different from being electrocuted. The justices reduced his sentence
to a life prison term.
Burt also pointed out that some of the killers on death row have been
sentenced to death by electrocution and others have been
nonspecifically sentenced to death.
"What we're saying in this constitutional amendment is that capital
punishment is legal in Florida," he said. "The method of execution is
determined by the legislature and the federal court system and if the
method has to be changed that doesn't invalidate a sentence of death."
The ballot title and summary of the constitutional amendment dealing
with the death penalty: No. 2: Preservation of the Death Penalty:
United States Supreme Court Interpretation of Cruel and Unusual
Punishment
Ballot Summary: Proposing an amendment to Section 17 of Article I of
the State Constitution preserving the death penalty, and permitting any
execution method unless prohibited by the Federal Constitution. Requires
construction of the prohibition against cruel and/or unusual punishment
to conform to United States Supreme Court interpretation of the Eighth
Amendment.
Prohibits reduction of a death sentence based on invalidity of execution
method, and provides for continued force of sentence. Provides for
retroactive applicability.
(source for both: Miami Herald)
10-17-98
In West Palm Beach, a video being shown to prospective jurors statewide has enraged the Florida Public Defenders Association for its images of the electric chair, the execution chamber and the viewing gallery.
Some of the same jurors who see the video - meant to educate them on proposed constitutional amendments - then are picked to decide if a murder suspect should be put to death.
Keo Nottage was convicted last week of 1st degree murder for his role in the 1977 shooting of Thomas Kelly, owner of Express Postal Centers in suburban West Palm Beach. The jurors had seen the video prior to being selected.
"I'm incensed. I think it's awful," said James Eisengerg, Nottage's attorney, who is asking for a new trial.
The Florida Public Defenders Association asked the Bar to immediately withdraw the tape from circulation statewide.
The video was sent to the state's chief circuit judges along with a letter from Florida Supreme Court Justice Major B. Harding, requesting it be played to prospective jurors. Panelists in Nottage's case watched it in a jury room, but attorneys did not know.
"We are only too well aware of our responsibility to inform and educate citizens about the importance of becoming familiar with proposed changes to the Constitution," Bar President Howard Coker wrote in a letter to the Florida Public Defenders Association. "Sometimes the line can be fine, but we are confident we are walking it."
The 10-minute video describes 13 proposed constitutional revisions on the Nov. 3 ballot. Amendment 2 preserves the death penalty and permits any method of execution as long as it is not prohibited by the US Constitution. Florida's definition of "cruel and unusual punishment" must also conform to US Supreme Court rulings.
While listening to details of Amendment 2, viewers see the electric chair and the death chamber where witnesses view executions.
Other defense attorneys are concerned about the video.
"It is not appropriate to be educating jurors about constitutional amendments," Chief Assistant Public Defender Bill White in Duval County said Friday. "I don't know what they (Florida Bar) were thinking."
All the attorneys in White's office who handle murder cases have been informed about the video. No murder cases have been tried in Jacksonville after potential jurors saw the video, White said.
The video has been shown to about 2,000 prospective jurors in Duval County over the past 6 weeks, said Duval County Court Clerk Henry Cook.
"If the chief justice of the state Supreme Court orders me to do it, I do it," Cook said. "Unless I am ordered by someone of higher authority, such as a judge, not to show it, I will continue to show it."
Chief Assistant Public Defender Paul Damico in West Palm Beach said the video might taint jurors in capital cases and asked Chief Circuit Judge Walter Colbath to pull the tape.
Colbath edited out the segment on Amendment 2. The video now skips from Amendment 1 to 3.
At least 1 other count, Pinellas, has banned the video.
But Coker defended it: "In Florida, the electric chair is the symbol and the reality of capital punishment. The Bar used a well-known and often-used symbol of capital punishment in Florida wshown by the media and others."
(source: Associated Press)
October 19, 1998
Keeping the Death Penalty Alive
Floridians next month can vote on a constitutional amendment billed
as a way to "preserve the death penalty." But critics say it does
much more.
They say it could allow the state to execute criminals who wouldn't be
put to death under our current system.
It would make it impossible for Florida courts or lawmakers to stop
using a particular method of execution, such as electrocution --
unless the U.S. Supreme Court had struck down that method.
And it has the potential to affect a wide number of other criminal
penalties, a consequence that would not be obvious from the summary
that will appear on the ballot, critics say.
But voters may assume the amendment simply asks whether people want to
continue the death penalty.
"That's why I think it's so misleading," Pinellas-Pasco Public Defender
Robert Dillinger said.
Florida's Catholic bishops this week urged people to vote against the
amendment partly because it "is intended to increase, rather than
restrain, the use of the death penalty in Florida."
State Rep. Victor Crist, R-Tampa, said he fought to place the amendment
on the ballot because he wanted to make it harder for Florida's courts
to overturn death sentences of the more than 300 convicted killers on
death row.
Execution "is the ultimate punishment for the most heinous of crimes.
The people who are on death row are guilty of crimes of the worst
degree. These are not simply murderers, these are people who have put
their victims through sheer hell before killing them," he said.
Amendment 2 is one of 13 proposed revisions and amendments to the
Constitution that voters can approve or reject on Nov. 3.
Dillinger said he's troubled by sections of Amendment 2 that would
federalize the Florida Constitution. 1 section would require Florida
to allow any type of execution that the U.S. Supreme Court allows.
Another would prevent Florida courts from declaring punishments
excessive unless they meet the U.S. Constitution's standard of "cruel
and unusual."
He says it should be up to Florida to decide whether it wants more
restrictions on how and when to execute people.
"If the citizens of Florida want something different from the feds,
we have every right to do that," he said.
University of Florida law professor Christopher Slobogin noted that the
amendment would hand "Florida's state sovereignty to another entity,
namely the (U.S.) Supreme Court. Ironically, that's something that
your typical conservative wouldn't like."
Crist isn't troubled.
"If it's good enough for the federal government, it should be good
enough for Florida," Crist said. The amendment would make it clear
that the state intends to continue executions, "rather than leaving it
up to the opinion of a judge who may not necessarily share that same
opinion."
In a memo opposing the amendment, Assistant Palm Beach Public Defender
Richard Greene cited the case of Tampa murderer Gary Tillman. His death
sentence was reduced to life after the Florida Supreme Court decided it
could not carry out a legal procedure called a "proportionality review,"
in which it would compare Tillman's death sentence to those of other
killers.
But the U.S. Supreme Court has specifically said that it does not
require such reviews, Greene's memo said. Which raises the prospect
that in a case like Tillman's, the defendant might be executed after
all.
"That's a possible result," Greene said in a telephone interview.
But he added that "it depends on how the courts interpret this
amendment," if it passes.
Greene wrote his memo for the Florida Public Defenders Association,
which opposes the amendment.
The Florida Prosecuting Attorneys Association has not taken a position
on the matter. Pinellas-Pasco State Attorney Bernie McCabe said he has
not decided how to vote on it himself, because he's not sure the
amendment is necessary.
The amendment would change a section of the Florida Constitution that
forbids the state from carrying out "cruel or unusual punishment."
The U.S. Constitution forbids punishments that are "cruel and unusual."
It would mean Florida defense lawyers would have to satisfy both
requirements when fighting a death sentence.
Greene said that while the cruel and unusual standard is most commonly
argued in death sentence cases, it also could be used in other criminal
cases.
(source: St. Petersburg Times)
In Tallahassee, the Florida Supreme Court refused Monday to remove a
constitutional amendment on the death penalty from the November ballot.
The court told religious leaders who made the request to go to a trial
judge with arguments that the measure is misleading.
"The people in the ballot box will have no idea what's going on," said
Mike McCarron, director of the Florida Catholic Conference.
The conference's general counsel was one of several religious leaders
who asked the state's high court 2 weeks ago to strike the amendment.
Others included leaders of the Florida Council of Churches as well as a
Methodist minister, a Quaker leader and pastors of other Christian
denominations.
Monday's 1-sentence decision was a 4-3 split. Chief Justice Major
Harding and Justices Ben Overton, Charles Wells and Barbara Pariente
made up the majority. Justices Leander Shaw, Gerald Kogan and Harry
Lee Anstead dissented.
The religious leaders will turn to circuit court in Tallahassee Tuesday,
according to Randy Berg, executive director of the Florida Justice Inc.
in Miami, who represented the group. Like McCarron, Berg said he was
disappointed by Monday's decision.
The amendment was put on the ballot by state lawmakers and begins
"Preservation of the Death Penalty."
The measure would allow any execution method that the U.S. Supreme
Court allows and says death sentences could not be reduced to life in
prison if the state's execution method is overturned.
But the religious leaders warn the actual amendment does more than its
ballot language says, including changing Florida's ban on "cruel or
unusual" punishment to match the federal ban on "cruel and unusual"
punishment.
Neither state Senate Majority Leader Locke Burt, R-Ormond Beach, nor
state Rep. Victor Crist, R-Temple Terrace, were in their offices
Monday.
The amendment probably wouldn't be on the ballot if fire hadn't erupted
during the March 1997 execution of Pedro Medina, prompting a legal
challenge to the state's 75-year-old electric chair.
The state Supreme Court upheld use of the electric chair in a 4-3
decision last fall.
However, 5 of the 7 justices urged state lawmakers to consider allowing
lethal injection as well as electrocution. And 2 of the justices warned
such a step might "avert a possible constitutional 'train wreck' if this
or any other court should ever determine that electrocution is
unconstitutional."
State lawmakers took that warning seriously and passed a law designating
lethal injection as the backup method of execution if the electric chair
is ever ruled unconstitutional.
McCarron and other challengers said that law preserves the death
penalty, making the ballot language deceptive.
(source: Associated Press)
by NOREEN MARCUS Staff Writer
Last October, the Florida Supreme Court
approved keeping the electric chair for executions
but asked the Legislature to take a look at another
method, lethal injection.
That request in the court's Oct. 20 ruling against
convicted killer Leo Jones inspired quick action.
Early in the spring session, legislators adopted
lethal injection as a backup, should electrocution
ever be invalidated.
Members of the Republican-controlled House
also noticed how close the vote in the Jones case
was -- 4-3. And they paid attention to a dissenter's
words.
"Execution by electrocution is a spectacle
whose time has passed, like the guillotine or public
stoning or burning at the stake," Justice Leander
Shaw wrote.
Joined by justices Gerald Kogan and Harry Lee
Anstead, Shaw denounced the problem-plagued
chair as "a dinosaur more befitting the laboratory
of Baron Frankenstein than the death chamber of
Florida State Prison."
The Legislature responded with Revision 2.
If approved by voters on Nov. 3, Revision 2 to
the state constitution will accomplish some
procedural changes designed to prevent lawyers
for Death Row inmates from using a change in
execution methods to delay an execution or turn a
death sentence into life in prison.
But the revision also is a symbol and a
message from the Legislature to the Florida
Supreme Court: Don't back down on the death
penalty.
"I would acknowledge that there is some
philosophical and political element to the decision
by the Republican leadership in the House to do
this," said Rep. Tom Feeney, R-Oviedo, a
co-sponsor of the bill that became Revision 2.
"There is concern that they (state high court
justices) are not as committed to the proposition
that the death penalty is a legitimate form of
sanction as are the majority of the U.S. Supreme
Court justices."
Rep. Victor Crist, R-Temple Terrace and the
measure's other sponsor, said in a statement that
Revision 2 would "eliminate the argument that the
death penalty is unconstitutional in Florida."
Based on the volume of calls to his office,
Crist said it appears that Revision 2 is strongly
supported by victim advocacy groups, law
enforcement and "anyone who supports capital
punishment" -- the vast majority of Floridians,
according to polls.
The measure would require the state Supreme
Court to stick with the U.S. Supreme Court's
definition of cruel and unusual punishment in the
Eighth Amendment.
Revision 2 would limit the state high court's
traditional power to interpret the Bill of Rights more
liberally than the federal courts do for Florida
residents.
Crist said, "It would prevent any court or judge
from ruling out capital punishment merely because
of personal preferences."
Opponents of Revision 2 say it wouldn't do that
at all. They say it would merely transfer power from
state justices to U.S. Supreme Court justices at a
time when the federal court is considered tougher
on the death penalty.
"Simply saying we don't care, we will do what
the federal government decides, doesn't say very
much about what the people of this state want,"
said Robert Brochin, a Miami lawyer and former
deputy general counsel to Gov. Lawton Chiles on
death penalty issues.
"Why should we be bound by federal decisions
looking at a method of execution from some other
state?" Brochin asked.
Down the road, personnel and court philosophy
could change, and those who support Revision 2
now might not like the consequences, opponents say.
"You could wind up having a state court more
conservative than the U.S. Supreme Court," said
Larry Helm Spalding, Tallahassee lobbyist for the
Florida American Civil Liberties Union.
Revision 2 is "a very shortsighted, knee-jerk
reaction to a perceived problem," he said.
Spalding uses his own eight-year career as
head of the state agency that represents Death
Row inmates to illustrate how judicial philosophies
change.
In 1985, when he started in the job and Bob
Martinez was governor, the state high court was
considered more conservative than federal courts.
"Our position was, let's get through the state courts
quickly and get into the federal courts (with death
penalty appeals)," Spalding said.
"That flip-flopped with Reagan and Bush
appointees to the federal courts," he said, adding
that it could flip-flop again if, while Clinton
appointees to the federal bench settle in, a
conservative governor appoints conservative
justices to the state court.
Feeney, a lawyer by profession, said he thinks
judicial standards are less subjective and flexible
than Spalding paints them.
The framers of the U.S. Constitution had no
quarrel with the death penalty, Feeney said. He
said he is counting on federal judges sticking to
the framers' original intent.
"There are different applications, but the
fundamental meaning of our forefathers doesn't
change over time," Feeney said.
(source: Ft. Lauderdale Sun-Sentinel)
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