Florida

Man convicted 3rd time of killing neighbor sentenced to death


December 11, 2017

JACKSONVILLE, Fla. – For the third time since a woman was brutally killed nine years, a Duval County judge has sentenced Randal Deviney to be put to death for the murder.

In August 2008, when Deviney was 18 years old, he slit the throat of Delores Futrell and beat her during an attempted burglary. He then moved her body and staged the scene to make it appear that she had been sexually assaulted.

 

In October, after two days of testimony from detectives, forensic scientists, family members and psychologists, a jury unanimously recommended he be given the death penalty. On Monday, Judge Mark Borello formally sentenced Deviney to be returned to death row.

On Monday, Judge Mark Borello said that the crime, cruelty of the crime and age of the victim were all factors that led him to give Deviney to the death penalty.

“We’re glad it’s finally over (and) he got the sentencing he deserved,” Futrell’s granddaughter Raqia Blades said after the October hearing. “I’m glad we don’t have to keep replaying the memories of what happened and keep asking the question, ‘Why?'”

It was the third jury that has been asked to sentence Deviney to death for the crime. The first conviction was overturned on appeal and his second sentence was thrown out when the Florida Supreme Court ruled that death penalties are only constitutional if there is a unanimous jury recommendation.

Futrell, a dialysis technician and mother of four, was described in court this week as loving life and having a thirst for knowledge.

“A person like my mom should have died a peaceful death,” said Jacquelynn Blades, Futrell’s oldest daughter.

During the sentencing hearing, the defense presented 37 mitigating factors to try and convince the jury to spare Deviney from the death penalty. It called Deviney’s father and a forensic psychologist to testify an abusive childhood.

Despite Deviney mental, sexual and physical abuse as a child, Borello said Deviney still had a loving family and that abusive history did not excuse Deviney’s actions.

The crime

According to court documents, an officer responding to a 911 call from Futrell’s townhome found her in a “sexual position.” Deviney later told a psychologist that he placed her that way to make it look like someone else killed her. Investigators found no physical evidence that Futrell had actually been raped, court records show.

READ: Details of murder from court documents (Warning: graphic content)

According to detectives investigating the murder scene, evidence showed that Deviney cut Futrell’s throat near a Koi pond in the backyard before dragging her inside the home and trying to cover up the murder by making it appear to have been a sexual assault.

The autopsy showed that Futrell had struggled with her attacker before her throat was cut and that the wound sliced her larynx, preventing her from breathing. She bled to death, according to court records. The Medical Examiner also found evidence that Futrell’s killer had tried to strangle her either after she was dead or while she was still dying from her neck wound.

DNA found under Futrell’s fingernails was matched to Deviney by analysts from the Florida Department of Law Enforcement.

Deviney claimed he just snapped while talking with Futrell one day, but prosecutors argued that the murder was premeditated because Deviney wanted to steal from Futrell.

Court history

Deviney was first convicted of killing Futrell in 2010. The conviction and death sentence were overturned after it was found that detectives had coerced a confession out of Deviney without reading him his Miranda rights.

In July 2015, Deviney was found guilty again, and a jury recommended he be sent back to Death Row with an 8-4 vote.

The state Supreme Court upheld that second conviction, but later ruled the death penalty unconstitutional unless there is a unanimous jury recommendation.

Deviney’s case is one of seven Duval County death sentences overturned this year by the Florida Supreme Court.

Over the years, Deviney’s behavior behind bars came under scrutiny. Before the start of his second trial, Deviney publicly made claims that Donald Smith, the man charged with murdering 8-year-old Cherish Perrywinkle, had told him about another murder he committed years before. He even attempted to use that information as leverage for a shorter prison sentence. The State Attorney’s Office said Deviney’s claims were not credible.

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States to try new ways of executing prisoners. Their latest idea? Opioids.


December 11, 2017

The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions.

The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this spring as a backup method – something no state or country has tried. Officials have yet to say whether it would be delivered in a gas chamber or through a gas mask.

Other states have passed laws authorizing a return to older methods, such as the firing squad and the electric chair.

“We’re in a new era,” said Deborah Denno, a law professor at Fordham University. “States have now gone through all the drugs closest to the original ones for lethal injection. And the more they experiment, the more they’re forced to use new drugs that we know less about in terms of how they might work in an execution.”

Supporters of capital punishment blame critics for the crisis, which comes amid a sharp decline in the number of executions and decreasing public support for the death penalty. As of late November, 23 inmates had been put to death in 2017 – fewer than in all but one year since 1991. Nineteen states no longer have capital punishment, with a third of those banning it in the past decade.

“If death penalty opponents were really concerned about inmates’ pain, they would help reopen the supply,” said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates the rights of crime victims. Opponents “caused the problem we’re in now by forcing pharmaceuticals to cut off the supply to these drugs. That’s why states are turning to less-than-optimal choices.”

Prison officials in Nevada and Nebraska have declined to answer questions about why they chose to use fentanyl in their next executions, which could take place in early 2018. Many states shroud their procedures in secrecy to try to minimize legal challenges.

But fentanyl offers several advantages. The obvious one is potency. The synthetic drug is 50 times more powerful than heroin and up to 100 times more powerful than morphine.

“There’s cruel irony that at the same time these state governments are trying to figure out how to stop so many from dying from opioids, that they now want to turn and use them to deliberately kill someone,” said Austin Sarat, a law professor at Amherst College who has studied the death penalty for more than four decades.

Another plus with fentanyl: It is easy to obtain. Although the drug has rocketed into the news because of the opioid crisis, doctors frequently use it to anesthetize patients for major surgery or to treat severe pain in patients with advanced cancer.

Nevada officials say they had no problem buying fentanyl.

“We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, said in an email. “Nothing out of the ordinary at all.”

The state, which last put someone to death in 2006, had planned its first fentanyl-assisted execution for November. The inmate involved, 47-year-old Scott Dozier, was convicted of killing a man in a Las Vegas hotel, cutting him into pieces and stealing his money.

According to documents obtained by The Washington Post, Nevada’s protocol calls for Dozier first to receive diazepam – a sedative better known as Valium – and then fentanyl to cause him to lose consciousness. Large doses of both would cause a person to stop breathing, according to three anesthesiologists interviewed for this report.

Yet Nevada also plans to inject Dozier with a third drug, cisatracurium, to paralyze his muscles – a step medical experts say makes the procedure riskier.

“If the first two drugs don’t work as planned or if they are administered incorrectly, which has already happened in so many cases . . . you would be awake and conscious, desperate to breathe and terrified but unable to move at all,” said Mark Heath, a professor of anesthesiology at Columbia University. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move.”

John DiMuro, who helped create the fentanyl execution protocol when he was the state’s chief medical officer, said he based it on procedures common in open-heart surgery. He included cisatracurium because of worries that the Valium and fentanyl might not fully stop an inmate’s breathing, he said. “The paralytic hastens and ensures death. It would be less humane without it.”

A judge postponed Dozier’s execution last month over concerns about the paralytic, and the case is awaiting review by Nevada’s Supreme Court. In the meantime, Nebraska is looking toward a fentanyl-assisted execution as soon as January. Jose Sandoval, the leader of a bank robbery in which five people were killed, would be the first person put to death in that state since 1997.

Sandoval would be injected with the same three drugs proposed in Nevada, plus potassium chloride to stop his heart.

Even at much lower concentrations, intravenous potassium chloride often causes a burning sensation, according to Heath. “So if you weren’t properly sedated, a highly concentrated dose would feel like someone was taking a blowtorch to your arm and burning you alive,” he said.

Fentanyl is just the latest in a long line of approaches that have been considered for capital punishment in the United States. With each, things have often gone wrong.

When hangings fell out of favor in the 19th century – because of botched cases and the drunken, carnival-like crowds they attracted – states turned to electrocution. The first one in 1890 was a grisly disaster: Spectators noticed the inmate was still breathing after the electricity was turned off, and prison officials had to zap the man all over again.

Gas chambers were similarly sold as a modern scientific solution. But one of the country’s last cyanide gas executions, in 1992, went so badly that it left witnesses crying and the warden threatening to resign rather than attempt another one.

Lethal injection, developed in Oklahoma in 1977, was supposed to solve these problems. It triggered concerns from the start, especially because of the paralytic drug used. Even so, the three-drug injection soon became the country’s dominant method of execution.

In recent years, as access to those drugs has dried up, states have tried others. Before the interest in fentanyl, many states tested a sedative called midazolam – leading to what Supreme Court Justice Sonia Sotomayor called “horrifying deaths.”

Dennis McGuire, who raped and killed a pregnant newlywed in Ohio, became the first inmate on whom that state’s new protocol was tried. Soon after the 2014 execution began, his body writhed on the table as he gasped for air and made gurgling, snorting noises that sounded as though he was drowning, according to witnesses.

The same year, Oklahoma used midazolam on an inmate convicted of kidnapping and killing a teenager; authorities aborted the execution after Clayton Lockett kicked, writhed and grimaced for 20 minutes, but he died not long after. Three months later, Arizona used midazolam on Joseph Wood III, who was convicted of killing his ex-girlfriend and her father. Officials injected him more than a dozen times as he struggled for almost two hours.

Like officials in other states, Arizona officials argued that the inmate did not suffer and that the procedure was not botched. Later, they said they would never again use midazolam in an execution.

Joel Zivot, a professor of anesthesiology and surgery at Emory University, called the states’ approach ludicrous. “There’s no medical or scientific basis for any of it,” he said. “It’s just a series of attempts: obtain certain drugs, try them out on prisoners, and see if and how they die.”

The bad publicity and continuing problems with drug supply have sent some of the 31 states where capital punishment remains legal in search of options beyond lethal injection. Turning to nitrogen gas would solve at least one issue.

Nitrogen is literally in the air we breathe – you can’t cut off anyone’s supply to that,” said Scheidegger, who strongly supports the idea.

In addition to Mississippi, Oklahoma has authorized nitrogen gas as a backup to lethal injection. Corrections officials and legislators in Louisiana and Alabama have said they hope to do the same.

And yet, critics note, there is almost no scientific research to suggest that nitrogen would be more humane.

Zivot is among those skeptical that nitrogen would work as hoped.

“There’s a difference between accidental hypoxia, like with pilots passing out, and someone knowing you’re trying to kill him and fighting against it,” he said. “Have you ever seen someone struggle to breathe? They gasp until the end. It’s terrifying.”

Dozier, the inmate Nevada hopes to execute soon with fentanyl has said he would prefer death by firing squad over any other method. In more than a dozen interviews, experts on both sides of the issue expressed similar views.

Of all the lethal technology humans have invented, the gun has endured as one of the most efficient ways to kill, said Denno, who has studied the death penalty for a quarter-century.

“The reason we keep looking for something else,” she said, “is because it’s not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”

Convicted killer Bessman Okafor to get new sentencing next year


December 6, 2017

ORANGE COUNTY, Fla. – A convicted killer sentenced to death row went before a judge Wednesday as he begins the process to get a new sentence

Bessman Okafor killed Alex Zaldivar, 19, and wounded two others in 2012.

He has to be re-sentenced because the state Supreme Court ordered all death sentence decisions must be unanimous.

Read: Florida Supreme Court overturns death sentence for Bessman Okafor

Rafael Zaldivar, the victim’s father, said reopening this case is painful.

“Everybody has to relive this all over again. It’s like we never moved on. It’s a never-ending story,” he said.

The judge scheduled Okafor’s new sentencing phase for November of next year.

The sentencing should take two weeks, with the first for jury selection and the other for witness testimony.

Photos: Orange County inmates on death row

Okafor will go before an Orange County judge to get an attorney and schedule a new sentencing phase.

“It’s opening up old wounds. It’s terrible for our family,” Rafael Zaldivar aid.

Okafor was sentenced to death in November 2015 for killing Alex Zaldivar and wounding two others during an Ocoee home invasion in 2012.

The three were set to testify against Okafor in a separate home invasion before the killing.

Rafael Zaldivar said he thinks about his son every day.

“He was a good and loving son. Unfortunately, he barely passed his 18th birthday,” he said.

State law has changed since the previous jury voted 11-1 to send Okafor to death row.

Jurors must now all agree on the death penalty.

Rafael Zaldivar believes that will happen.

“I’m very confident they’re going to do it again,” he said.

Months after the Supreme Court ruling, Orange and Osceola County State Attorney Aramis Ayala announced she would not seek the death penalty during her tenure.

Read: Florida Supreme Court rules against Ayala on Scott’s reassigning of death penalty cases

Gov. Rick Scott then gave Okafor’s case, along with dozens of others, to State Attorney Brad King in Ocala.

“Out of the blue, we had to deal with Aramis Ayala, about her not applying the death penalty to our son’s case. So, it’s been difficult for us and we did not need that with everything going on,” Rafael Zaldivar said. “Thank God Gov. Rick Scott executed that order.”

Miami mom is on trial a third time for the torture and murder of ‘Baby Lollipops’


December  4,2017

For the third time, a jury heard about Baby Lollipops’ short and tragic life — and the details remained just as ghastly now as they did in 1990, when his body was discovered in the bushes of a Miami Beach home.

The skeletal, malnourished 3-year-old weighed just 18 pounds. His soiled diaper was duct-taped onto his filthy body. His cheek bore a burn mark, likely from a cigarette.

Two teeth were knocked out, taking out a portion of his jaw. Blow after blow, inflicted month after month, eventually left his tiny body battered. He was unable to walk, his skull was fractured, his brain stem severed.

“His left arm was so badly injured that the muscle from the elbow to the shoulder had fused into the bone making it impossible for this young child to extend his arm,” Miami-Dade prosecutor Christine Hernandez told jurors on Monday.

Lazaro Figueroa died an unimaginably horrible death. And to blame, prosecutors allege, was his own mother, Ana Maria Cardona, who beat and abused her youngest child over months.

“This young baby was the subject of her hatred, this baby was the target of her rage,” Hernandez told jurors.

The start of the trial Monday marks the third time Cardona has faced a jury for the November 1990 murder of little Lazaro, whose corpse was discovered dumped outside a home in Miami Beach.

As detectives hunted for his killer and identity in a case that captivated South Florida, they dubbed him “Baby Lollipops” for the design on his shirt. Homicide detectives soon arrested Cardona, a cocaine addict who had lived in a Miami efficiency with her two other children and lover, Olivia Gonzalez.

Cardona’s defense team on Monday shifted the blame.

“We’re going to bring you testimony that while Olivia Gonzalez was serving time in prison, she bragged that she was the one who hit the child over the head with a baseball bat and killed him,” Miami-Dade Assistant Public Defender Manuel Alvarez said.

Jurors will not hear that twice before, Cardona was sent to Death Row after convictions for first-degree murder and aggravated child abuse.

Lazaro Figueroa died an unimaginably horrible death. And to blame, prosecutors allege, was his own mother, Ana Maria Cardona, who beat and abused her youngest child over months.

“This young baby was the subject of her hatred, this baby was the target of her rage,” Hernandez told jurors.

Death Sentence Commuted to Life For William Gregory, Double-Murderer of Flagler Beach


December 4, 2017

The murders happened on August 21, 2007, at a house on John Anderson Highway in Flagler Beach. William Gregory, 24 at the time, walked in on his ex-girlfriend Skyler Dawn Meekings, 17, and her boyfriend of two months, Daniel Arthur Dyer, 22, as they slept together, and shot them both at close range with a shotgun. A 1-year-old child Gregory had with Meekins was sleeping in a bedroom nearby.

He was tried, found guilty, and in 2011, sentenced to death in the culmination of a case that had drawn such notoriety locally that it was moved to Volusia County. It eas tried before Circuit Judge William A. Parsons.

But the jury’s recommendation for death in 2011 was by the slimmest possible margin of 7-5, back when Florida was one of just two states that still allowed death sentences to be imposed after less than a unanimous jury verdict. That changed less than two years ago, when U.S. Supreme Court and Florida Supreme Court decisions found Florida’s method of sentencing defendants to death unconstitutional.

Recommendations must now be unanimous. In Gregory’s case, the Supreme Court in August threw out his death sentence and returned the case to circuit court in Flagler County for a new sentencing phase.

That would have meant an elaborate process, similar to a trial, involving pre-trial hearings, the impaneling of a jury, the questioning of witnesses at a sentencing hearing
and jury deliberations. In other words it would have meant bringing back Meekins’s family to relive those events again.

It would have also raised other procedural issues Gregory’s attorney raised in 2016, claiming there would have been grounds for a mistrial in the original case.

William Gregory at his latest booking at the Flagler County Jail in November.

William Gregory at his latest booking at the Flagler County Jail in November.

Monday morning, Circuit Court Judge Dennis Craig commuted Gregory’s death sentence to life in prison without parole on both counts.

“We looked at the case and and consulted with the family,” Assistant State Attorney Jason lewis said. “They did not want to go through the process again.” So the prosecution agreed to a commutation in what amounted to a hearing lasting all of five minutes. Gregory had been brought in from his death row cell at the state prison near Raiford.

“We’d have to basically do a whole new penalty phase,” Lewis said, “and we take the family’s wishes very seriously. That’s what they wanted.”

The families’ positions were no mystery, as Daniel Dyer’s big sister had expressed it in her statement to the court before the 2011 sentencing: “The worst thing about Dan’s death,” she wrote, “is the way he died. He didn’t die in an accident or a health condition. He was murdered by a cowardly little twit. He was such a coward that instead of confronting Dan, like a real man, he crept in the dark into Skyler’s room, and shot them both in the head while they were asleep. The wounds were so horrible that we couldn’t even have an open casket for Dan so we could see him one last time.”

She had asked for the death penalty. “He had the right to a judge and jury,” she’d written, “but what about Dan and Skyler’s rights? They had no judge, no jury, only a 12-gauge shotgun to the head while they slept.” Using Gregory’s nickname, she went on: “And what has Billy done this entire time? He shows no remorse, no sorrow, he just sits there, so arrogant, that somehow he thought he ws smart enough to get away with it, that he had the right to play God and kill 2 innocent people. Foe what? The simple fact that Skyler had left him for a real man.”

The families of the victims were not in court this morning. But Skyler’s aunt Deborah Meekins had written the court six years ago that while she had never been much for the death penalty, “what I do know–Billy is all for it. Billy sentenced Skyler and Dan to the death penalty, right there, that night, as they slept together alone for the first time.”

Skyler’s father, Hap Meekins, had written of his daughter in 2011: “Skyler was very talented. A straight-A student with ambition. But the thing that I remember the most was her dedication toward anything she did. Being the youngest of three girls did not matter. Like the summer she spent fishing on the Pier. The three girls would spend hours fishing for King Fish. She caught a 30-lb. King Fish which didn’t go over well with her sisters. She never minded getting her hands dirty whether it was fishing, playing soccer, or helping me with the garden. She was very unselfish; she would help me [with] anything I asked.” And he’d concluded: “My memories will keep me going for the rest of my life. I love you Skyler always and forever. No one can take that away.”

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.

Case Targets Florida Death Penalty Sentencing


The U.S. Supreme Court this fall will hear arguments in a challenge to the way Florida sentences people to death — a challenge backed by 3 former Florida Supreme Court justices and the American Bar Association.
The case, which stems from the 1998 murder of an Escambia County fast-food worker, focuses on the role that juries play in recommending death sentences, which ultimately are imposed by judges.
Attorneys representing death row inmate Timothy Lee Hurst, including former U.S. Solicitor General Seth Waxman, contend that Florida’s unique sentencing system is unconstitutional. Supporting that position in friend-of-the-court briefs are former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett and Gerald Kogan, along with the American Bar Association and seven former Florida circuit judges.
Part of the argument centers on what are known as “aggravating” circumstances that must be found before defendants can be sentenced to death. Hurst’s attorneys argue, in part, that a 2002 U.S. Supreme Court ruling requires that determination of such aggravating circumstances be “entrusted” to juries, not to judges.
Also, they take issue with Florida not requiring unanimous jury recommendations in death-penalty cases. A judge sentenced Hurst to death after receiving a 7-5 jury recommendation.
“Florida juries play only an advisory role,” Hurst’s attorneys wrote in a May brief. “The jury recommends a sentence of life or death based on its assessment of aggravating and mitigating circumstances, but that recommendation has no binding effect. Moreover, the jury renders its advisory verdict under procedures that degrade the integrity of the jury’s function. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”
But in an earlier brief, attorneys for the state argued that the U.S. Supreme Court and the Florida Supreme Court have repeatedly denied challenges to the sentencing process, including the Florida Supreme Court rejecting Hurst’s challenge. The state attorneys argued that a jury, in recommending the death penalty, has found facts that support at least one aggravating factor — which can be the basis for sentencing a defendant to death.
“Therefore, because the jury returned a recommendation of death, this court may infer the jury did find at least one aggravating circumstance beyond a reasonable doubt,” state attorneys wrote in a January brief in the U.S. Supreme Court.
The U.S. Supreme Court this week scheduled oral arguments in the case for Oct. 13, according to an online docket. The court agreed in March to take up the case.
Hurst, now 36, was convicted in the 1998 murder of Cynthia Lee Harrison, who was an assistant manager at a Popeye’s Fried Chicken restaurant where Hurst worked. Harrison’s body was discovered bound in a freezer, and money was missing from a safe, according to a brief in the case.
In sentencing Hurst to death, a judge found 2 aggravating circumstances — that the murder was committed during a robbery and that it was “especially heinous, atrocious or cruel,” according to the brief filed by Hurst’s attorneys. That brief, along with others in the case, were posted on an American Bar Association website and on SCOTUSblog, which closely tracks U.S. Supreme Court proceedings.
Much of the October hearing could focus on how to apply the 2002 U.S. Supreme Court decision — a major case known as Ring v. Arizona — to the Florida law. Hurst’s attorneys contend that the 2002 decision held that “findings of fact necessary to authorize a death sentence may not be entrusted to the judge.” They said Florida’s system undermines the juries’ constitutional “functions as responsible fact-finder and voice of the community’s moral judgment.”
The brief filed on behalf of Anstead, Barkett and Kogan raised similar arguments and said there is “no assurance that Florida death sentences are premised on a particular aggravating circumstance found by the jury.”
“And because jury unanimity is not mandated during the sentencing process, there is no assurance that a Florida jury’s death recommendation represents a reliable consensus of the community,” the brief said. “As a consequence, (the former justices) believe that the jury’s role is impermissibly denigrated and that there is an unacceptable risk that Florida death sentences are erroneously imposed, in violation of the Sixth and the Eighth Amendments to the Constitution of the United States.”
Source: WUSF news, August 1, 2015

Florida man struggles to build life after death row exoneration


Seth Penalver dropped to the floor and wept into his chair when a Florida jury declared him not guilty in the shooting deaths of three people during a 1994 home invasion.
After 3 trials and 18 years in prison – including 13 on death row – a Broward County jury in 2012 found Penalver not guilty of capital murder in the 1994 slayings of Casmir Sucharski, 48, Marie Rogers, 25, and Sharon Anderson, 25.
Little did he know about the struggles that lay ahead. His release from prison marked a new chapter, one that’s been filled with ups and downs, given his prolonged absence from society. Despite his acquittal, he says he struggles to find work because of his background, which includes 2 prior nonviolent felonies.
“You Google my name and it lights up the screen. I’m 20 years minus a resume, so it’s hard,” he said.
Experts say Penalver’s struggles with reintegration are typical for death row exonerees or people found to be wrongly convicted. On paper, they’re no longer offenders, but they’re not quite free of the stigma or psychological impact of their incarceration. The duration of their incarceration can strain personal relationships, creating a void in support systems after their release. Additionally, they often lack access to the same career or counseling services available to parolees because technically, they’re not on parole.
“The media attention tends to focus on how people got wrongly convicted, what in the system led to these cases, and those are important stories worthy of attention,” said University of North Carolina at Greensboro professor Saundra Westervelt, author of “Life After Death Row: Exonerees’ Search for Community and Identity.”
“But the story doesn’t end there. There’s a slew of practical problems they have to figure out how to manage.”
The state could help improve prospects for exonerees by providing monetary compensation and reintegration services, said Westervelt, a board member of Witness to Innocence, which works to abolish the death penalty and provide support to former death row inmates.
Only 30 states have laws that provide monetary compensation to wrongly convicted people, which can include death row exonerees. And in many states, including Florida, they come with limits. In some states, access to monetary compensation is available only for people exonerated by DNA evidence, who receive an official gubernatorial pardon or who don’t have prior felonies.
A crime unfolds on video
Local media dubbed the triple slayings the “Casey’s Nickelodeon murders” because Sucharski was an owner of Casey’s Nickelodeon, a Miramar nightclub where he met aspiring models Rogers and Anderson. The 3 were shot dead in Sucharski’s home in Miramar, Florida, early in the morning of June 26, 1994.
Penalver and co-defendant Pablo Ibar were charged in the crime after witnesses identified them in grainy home surveillance video showing 2 men breaking into Sucharski’s home. Penalver surrendered to law enforcement in August 1994 after a warrant was issued for his arrest.
Penalver stood trial three times for the murders. His first trial with Ibar in 1997 ended in a mistrial after the jury deadlocked 10-2 in favor of guilt. The cases were severed, and Penalver was tried again in 1999 and sentenced to death on charges of murder, attempted robbery and burglary.
The Florida Supreme Court overturned Penalver’s verdict in 2006 based on a series of evidentiary and constitutional errors related to witness testimony and identification. Given the absence of physical evidence connecting Penalver to the crime and questions about the identification of the men in the surveillance video, “the witnesses’ statements presented at trial were of paramount importance,” the judges wrote in their ruling.
An expert witness who viewed the tape said that he couldn’t identify anyone from it, but that the person in the video had facial characteristics inconsistent with Penalver’s facial structure. Some people who knew Penalver said the video wasn’t him or they couldn’t tell. One said she couldn’t tell from the face, but the subject’s gait was like Penalver’s. Another told the police that it was Penalver, but then testified in court that she couldn’t say whether it was him or not.
With respect to this last witness, the prosecution argued that she changed her testimony after meeting with the defense, improperly suggesting — with no evidence to support it — that the defense had tampered with her, the court found. The court also found that the prosecution improperly admitted hearsay testimony that an alternate suspect was out of state, when there was no evidence that the suspect was out of state. The prosecution also presented evidence implying that Penalver had been suicidal and wrongly used that suggestion to imply consciousness of guilt, the court said.
“In light of the scant evidence connecting Penalver to this murder and the consequent importance of identifying the individual depicted on the videotape in sunglasses and hat, we conclude that the improperly admitted evidence and the State’s suggestion that the defense tampered with or suborned perjury by an identification witness meet the cumulative error requirements outlined above and require reversal,” the court said in its opinion.
The video magnified the uncertainty, making the strength of the remaining evidence all the more important, said Temple University law professor Jules Epstein, who specializes in forensics. Appellate courts assess error based on the magnitude of the mistakes and their cumulative impact.
“The weaker the rest of the evidence, the more significant the mistakes are. Conversely, the stronger the remaining evidence, the impact of mistake goes down,” Epstein said.
Stepping up for the wrongfully convicted
Penalver says he gets by on odd jobs and government assistance in the form of food stamps. He would like to attend school or learn a trade, but living hand to mouth makes it impossible to find time or money for education, he said.
Compensation from the state would help, but under the “clean hands” provision of Florida’s Victims of Wrongful Incarceration Compensation Act, Penalver is ineligible because of his 2 prior nonviolent felonies, which are unrelated to the triple slayings he was accused of.
“Just because I had prior felonies in the past, that shouldn’t mean I can’t be compensated for what was done to me,” he said. “It’s hard getting back on your feet; anything would help.”
Source: Las Vegas Review-Journal, August 1, 2015

Florida’s lethal-injection drug gets Supreme Court nod


June 29, 2015

The Supreme Court’s decision Monday to uphold the use of a controversial drug in lethal-injection executions will have ramifications for the 395 people on Florida’s death row as well as on the upcoming execution of a man who killed four family members in Orlando in 1985.

Florida Supreme Court justices stayed the Feb. 26 execution of Jerry Correll pending the high court’s ruling over midazolam — the first drug administered during a three-step process to execute inmates in a handful of states, including Florida.

Monday’s decision prompted a motion from Florida officials state to lift the stay.

Executions in other states have raised concerns the sedative did not perform its intended task of putting inmates into a comalike sleep. Correll’s attorneys argued that point in an emergency motion to delay his execution at least until the Supreme Court offered its opinion. A jury convicted their client of stabbing and killing his 5-year-old daughter, ex-wife, mother-in-law and sister-in-law.

But Monday’s ruling just preserves the status quo in Florida and in the other 31 states that use capital punishment, said Orlando attorney Steven Laurence. It means midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

“The Florida Supreme Court acknowledged when they granted a stay that there has been some issues [with the drug], and they wanted to the U.S. Supreme Court to speak to that issue,” said Laurence, who’s been trying death-penalty cases at the state Supreme Court for more than a decade.

“Now they’ve spoken to that issue, and from the perspective of a Florida practitioner such as myself, it’s back to business as usual.”

Florida remains among the most active states using the death penalty, putting 16 people to death in the past three years, according to the Death Penalty Information Center, a national nonprofit research group.

Florida Gov. Rick Scott has signed more death warrants than any other modern Florida governor in a single term.

The Orange-Osceola State Attorney’s Office is seeking the death penalty in seven cases this year, according to a spokeswoman. Defendants in those cases include Sanel Saint Simon, the Orange County man accused of beating his girlfriend’s 16-year-old daughter to death, and Bessman Okafor, the suspected mastermind behind a witness-execution plot.

This won’t be the last time a U.S. Supreme Court ruling affects Florida’s death penalty.

The high court agreed to hear in its next term a case called Hurst v. Florida, a challenge to the state’s procedure for determining a death sentence.

Florida is the only state that doesn’t require a unanimous jury to recommend death. Rather, a majority vote, after a special hearing on factors that could justify or mitigate the death penalty, will send a convict to death row.

A trial judge must either approve or reject that recommendation.

Laurence said this case has a better chance at affecting Florida’s procedures because the practice is an outlier among other states.

“It seems contrived that to find a person guilty of the death penalty requires a unanimity, but to actually execute them does not,” he said. “To me, that’s a much more compelling issue.”

In its ruling on Correll’s execution, Florida Chief Justice Jorge Labarga wrote in the majority opinion that the stay was justified because the Oklahoma protocol under review by the U.S. Supreme Court is “virtually identical” to Florida’s process.

“Without the stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy.”

Clarification came Monday in a 5-4 decision by the Supreme Court as two dissenting justices said for the first time that they think it’s “highly likely” that the death penalty itself is unconstitutional.

Justice Samuel Alito said arguments the drug could not be used effectively as a sedative in executions are speculative.

In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer’s opinion.

Information from The Associated Press was used in this report.

Florida. death penalty faces scrutiny from Supreme Court


June 28, 2015

— Thirteen years after the U.S. Supreme Court ruled that juries, not judges, should decide death sentences, Florida stands alone in how its justice system imposes capital punishment.

“Florida’s capital sentencing system is unique among all 33 American jurisdictions that permit capital punishment,” the American Bar Association says in a brief filed before the nation’s highest court. “Indeed, the Florida Supreme Court has characterized Florida as ‘the outlier state.’ ”

Now the nation’s highest court is poised to consider in its next term whether Florida needs to change its system for deciding whom to execute.

The issue concerns the role of juries in death penalty decisions. It’s an aspect of the state’s system of capital punishment that courts have struggled with for years.

In Florida, as in other states, when defendants are convicted of murder in a death penalty case, juries hear evidence regarding the existence of “aggravating factors,” or aspects of the case that weigh in favor of a death sentence, as well as “mitigating factors,” information that favors a sentence of life in prison without the possibility of parole.

In recommending a sentence, a jury determines whether aggravating factors in a case outweigh the mitigating circumstances and justify the imposition of a death sentence.

But Florida juries, unlike most other states, are told their decisions are merely advisory, and that the judge will make the ultimate determination over whether to sentence a defendant to death. Trial judges in Florida are required to make their own, independent findings and are permitted to impose sentences different from jury recommendations.

Juries in Florida also are not required to reach unanimous decisions on the existence of specific aggravating factors or on whether to recommend a death sentence.

No other state allows the imposition of a death sentence without jurors either finding unanimously that a specific aggravating factor has been established or unanimously finding that capital punishment is appropriate.

The American Bar Association, which takes no position on the overall constitutionality of the death penalty, is urging the U.S. Supreme Court to direct Florida to make changes and require jurors to specify which aggravating factors they have unanimously found to be present. The association wants the high court to require jurors to unanimously agree on the imposition of death sentences.

The American Bar Association reviewed the state’s death penalty system in 2006 and found the need to improve its fairness and accuracy.

Among the findings was that there was significant confusion among jurors in capital cases. “Research establishes that many Florida capital jurors do not understand their role and responsibilities when deciding whether to impose a death sentence,” the association’s report stated.

The ABA also concluded that not requiring jurors to be unanimous “reduces the jury’s deliberation time and thus may diminish the thoroughness of the deliberations.”

The U.S. Supreme Court in 2002 threw out Arizona’s system of capital punishment, ruling it was unconstitutional because judges, not juries, determined the existence of aggravating factors and sentenced defendants to death.

Months later, the Florida Supreme Court left intact the state’s system of capital punishment, concluding that the U.S. Supreme Court had repeatedly reviewed it and found it constitutional.

The state’s high court noted that the U.S. Supreme Court had refused to hear the appeal of one of the Florida defendants challenging the state system, even after it made the Arizona decision.

That Florida appeal involved Amos Lee King, who was later executed for the 1977 murder of Natalie “Tillie” Brady inside her Tarpon Springs home. Brady was raped, stabbed and beaten while King was in a nearby prison work-release program.

The state Supreme Court called in 2005 for the state Legislature to make changes to the state’s death penalty law to require unanimity in jury recommendations. But state lawmakers didn’t act.

In the ensuing years, the state Supreme Court continued to hold that the state’s death penalty system is constitutional. One of those rulings came in the Escambia County case of Timothy Lee Hurst, convicted of murdering coworker Cynthia Harrison in a robbery at Popeye’s restaurant on May 2, 1998.

The state Supreme Court initially upheld Hurst’s conviction and death sentence but later granted him a new penalty phase hearing on the grounds his original defense lawyer failed to properly pre­sent and investigate mitigating evidence relating to his borderline intelligence and possible brain damage. At the conclusion of the second sentencing hearing, jurors returned a verdict of 7-5 in favor of death.

Hurst appealed again to the state Supreme Court, which upheld his death sentence, rejecting arguments that included assertions the jury should have been required to unanimously find a specific aggravating circumstance and unanimously decide his sentence.

The state Supreme Court noted in its Hurst ruling that it has previously concluded that the U.S. Supreme Court ruling in the Arizona case did not require juries to make specific findings of aggravating factors or to make unanimous decisions regarding death sentences. The Florida court refused to revisit its prior rulings.

Hurst also argued the jury should have been required to determine whether he was mentally disabled, a finding that would have barred the implementation of the death penalty. After hearing testimony from witnesses and experts, the trial judge ruled that Hurst was not mentally disabled.

The state Supreme Court ruled that although some states require such findings be made by juries, Florida is not one of those states, and the U.S. Supreme Court has not mandated that procedure.

Hurst appealed to the U.S. Supreme Court, which agreed to hear the case in its next term, which begins in October.