Law changes force dozens of old death penalty, juvenile cases back into courtrooms


November  29,  2017

A black teenager, just shy of his 16th birthday, was arrested for raping a white woman in 1967 in Escambia County.

Lester Simmons pleaded guilty through an agreement with the state that allowed him to avoid the death penalty.

But had the case been prosecuted today, it would have likely been handled differently.

After the passage of a new law, Simmons’ public defender, Kelly Richards, is now tasked with proving her client should be released from prison 50 years later, despite his life sentence.

Richards said the case is rife with racial and social undertones indicative of the time. A partial transcript from Simmons’ trial shows he stayed in the woman’s home for some time after the crime, during which the victim sparked a conversation with him about how difficult it was to be a black person in that era.

Now, his defense team will ask a judge to weigh how much those societal factors affected his sentence and try to prove Simmons, now 66, should be free.

Simmons is one of dozens of offenders in the First Judicial Circuit whose cases have been reopened this year after two unprecedented Supreme Court decisions. Both of these decisions have forced prosecutors and defense attorneys to invest hours of research and additional costs to re-examine the old cases.

The first decision brings back the case of every juvenile who has been sentenced to life in prison. With more research on brain development, the U.S. Supreme Court decided in 2012 that juveniles should be entitled to special hearings before a judge to ascertain their crime was heinous enough to warrant a life sentence, despite certain factors such as their immaturity and family or peer pressure.

The second decision mandates new penalty phase hearings for all death row inmates who were sentenced by juries that did not unanimously recommend the death sentence.

In 2016, the Florida Supreme Court declared the previous law unconstitutional based in part on the local case of Timothy Hurst. In all of the cases that warrant a new penalty phase, a new jury will be selected to hear the facts of the case and determine the death penalty aspect. None of the inmates are at risk of being released, as the guilt factor of their offense still remains.

The Legislature didn’t allocate additional funding to absorb the costs, so the Public Defender’s Office and the State Attorney’s Office have instead authorized overtime, travel costs and shuffled senior attorneys to lower divisions to help with the additional workload.

In the First Judicial Circuit, which covers Escambia, Santa Rosa, Okaloosa and Walton counties, the state is dividing 31 juvenile resentencing cases and as many as 10 death penalty resentencing cases among its attorneys.

“It is a lot of work, and on the death penalty resentencings, we are requesting two weeks to try those cases because we expect most of the evidence from the original trial will have to be presented again in order for the jury to evaluate the aggravators, the mitigators and the death penalty sentence,” State Attorney Bill Eddins said.

Eddins said juvenile sentencing hearings are being scheduled for between two and five days.

If each of the cases — both the juvenile sentencing hearings and death penalty resentenchings — were heard at their maximum and in the same court consecutively, it would equate to nearly a year dealing with cases affected by the two new laws — and that doesn’t take into account new crimes or pending cases.

Public Defender Bruce Miller said for each of the death penalty resentencing cases and juvenile resentencings, his office curates a legal team of a lead attorney, second chair, mitigation specialist, legal assistant and fact investigator.

Mitigation specialist Lindsey Johnson is tasked with tracking down old records for the defendants, finding their families and friends, organizing psychologists and other experts to testify about brain development, and locating key witnesses to the original case. For some of the cases, those witnesses are as recent as five years ago, but others case are decades old and the witnesses have since died.

“With a lot of the older ones especially, one of the guys has no family, it’s hard to find people,” Johnson said. “They’ve been in prison so long that sometimes even if they do have family they kind of forget about them.”

While neither the state nor defense is required to present the same witnesses or use the same attorney as during the original trial, it’s helpful if they can, Eddins said. To keep up with the strain, his office has brought in supervisors who usually act as managers to handle cases.

John Molchan, for example, usually oversees felony cases as a supervisor and serves on the circuit’s death penalty assessment board. But he has taken on the majority of the death penalty resentencing cases as the lead prosecutor.

Miller and Eddins said the state hasn’t funneled any additional funding to either the Public Defender’s Office or the State Attorney’s Office to help with the resources and manpower needed to bring back these old cases.

Aside from salaries and overtime allowances, there’s travel to speak with inmates housed in prisons across the state and the cost of bringing in experts to assess the case and testify.

There hasn’t been a cost assessment on the financial impact of the two Supreme Court decisions on local courts, but a conservative estimate for expert defense witnesses in just one of juvenile resentencing case would be more than $20,000, Miller said.

“The hours that go into something like this are enormous,” Miller said.

He said his office has requested additional attorneys in next year’s budget to help with the workload, but he expects the office will need to work within its means to accommodate the law shifts.

In the case of Simmons, the black teenager serving a life sentence, the state and defense must delve into 50 years of law revisions and present an argument that accurately reflects the sometimes-foggy details they can find in old court records from 1967. Nowadays, the death penalty wouldn’t even be on the table for a juvenile offender, said Simmons’ attorney, Richards.

“These are so time consuming because we have to go back to 1967 to find out exactly what happened, what may have happened legally in between and different laws come into play depending on when the original crime occurred, so they’re all different, it’s not cookie cutter anything,” Richards said.

Several of these cases have already been heard, including the case of Britnee Miller, who pleaded guilty to killing an acquaintance with her mom and neighbor in 2010 when she was 16.

During Miller’s sentencing hearing in October, Circuit Judge Gary Bergosh heard of Miller’s abusive childhood, of her dependency on her mother and her mom’s approval, and of how Miller has matured in the seven years since the death of Audreanna Zimmerman. Bergosh took those factors into account, but ultimately maintained Miller’s life sentence.

Another case, that of then-17-year-old Clifford Barth, who helped a group of friends rob and kill an auto parts employee in 1991, had a different outcome. Barth served 25 years in prison, and the judge decided in September he should be released.

In that case, both the state and defense agreed Barth should be released, and there wasn’t much argument by either side. He had no prior record, was immediately remorseful for his actions and hadn’t received any disciplinary reports during his decades in prison.

The Public Defender’s Office isn’t dealing with as many of the reopened cases as the State Attorney’s Office because some defendants are represented by private attorneys or the Public Defender’s Office has a conflict of interest.

Still, Miller, the Public Defender, said Johnson’s recommended caseload for death penalty cases is between four and seven, and with the influx, she’s over that recommendation.

“The juvenile resentencing especially is just a seismic shift in the legal arena, so to speak, and it’s still evolving,” Richards said. “Cases are coming out, being appealed, different circuits are handling things different so you’ve got to stay on top of the case law.”

While some juvenile sentencing hearings have been held in the First Judicial Circuit since the law shift, the region has yet to see death penalty sentencing phases heard in local courtrooms.

Eddins said he expects a number of juries to be impaneled in those cases as soon as next year. Cases like that of Jonathan Lawrence, a mentally ill man who killed several people in Santa Rosa County, and Willie Hodges, who killed a Pensacola woman with a claw hammer, have penalty phase trial dates set for next year already to reassess their death row status.

The others are still being assessed and are going back and forth between state and defense filings as each tries to keep up with precedents, tracking down witnesses who thought their involvement in cases were done decades ago, and working with defendants who may get a second chance at a life outside of prison.

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