Before executing someone, Florida Cabinet should take a good long look
James Dailey was to die today for a crime another man has claimed as his own. That he will live at least a few weeks longer owes to a federal judge with a keener sense of justice than shown by Gov. Ron DeSantis and the Florida Supreme Court.
There are strong reasons why Gov. DeSantis and the Cabinet should commute Dailey’s sentence to life in prison without parole.
To convict Dailey, the state relied on jailhouse informants who said they heard him admit knowledge of the murder of Shelley Biaggo, 14, in Pinellas County 29 years ago. Such witnesses are inherently unreliable because of what they stand to gain from helping the prosecution.
Dailey’s co-defendant, who has since said he committed the crime alone, is serving a life sentence. Such disparity is why past governors have commuted the death sentences of those who draw the short straws.
A hearing can be called by any member of the Cabinet, who, with the governor, sit as the Board of Executive Clemency. But for 19 years, none has. Dailey’s opportunity passed in 2015 when Gov. Rick Scott and the Cabinet took no action after receiving a secret report from the Commission on Offender Review.
Now, welcome news. Two Cabinet members, Agriculture Commissioner Nikki Fried and Chief Financial Officer Jimmy Patronis, favor granting clemency board hearings to condemned inmates. Fried, a former public defender, would make it mandatory.
“There’s no harm in making sure that there’s more eyes on these cases and reviewing all of the facts underlining it,” she said.
“You want to ensure that every opportunity to create any type of exoneration is a possibility,” said Patronis, “but at the same time, there also has to be a consequence to the crime that was committed.”
Life in prison without parole — the alternative to death for first degree murder — is undoubtedly a serious consequence.
Public hearings on clemency should be mandatory, not only when new pleas arrive, but for the many older ones denied without explanation.
The board should do away with the pervasive secrecy that is so inconsistent with Florida’s devotion to open government.
Florida leads the nation in Death Row exonerations with 29, nearly one for every three people executed. That means that 29 times, the state got it wrong. Twenty-nine times. Most often, DNA evidence later revealed the error.
Given Florida’s record, it’s reasonable to convene a clemency review before putting someone to death.
Fried and Patronis spoke in the context of Dailey’s impending execution.
After rejecting another of his appeals last month, the Florida Supreme Court refused to stay Gov. DeSantis’ Nov. 7 death warrant. A federal judge then put it off until Dec. 30 to give Dailey’s attorneys time to prepare a case before him.
DeSantis and Attorney General Ashley Moody should see clemency in the same moral light as Fried and Patronis do, and as Graham and the Cabinet of his day.
They should not rely on what former Gov. Scott let slip by. The governor who now holds Dailey’s life in his hands has a moral duty to consider clemency afresh. If Dailey dies, it will not be on Scott’s warrant, but on DeSantis’.
In an email answering some questions about the Dailey case, the governor’s communication director, Helen Aguirre Ferré, made these remarks:
“This case has been litigated for thirty years including for sufficiency of the evidence for the initial conviction,” she said. “No court has found merit to Dailey’s actual innocence arguments. The Governor actively reviews all information and court proceedings. He welcomes all additional information as he continues to review the case. He has likewise heard from the victim’s family who is searching for peace through this process.”
Parts of that are troubling.
In the context of clemency, the proper question is not what the courts found, but whether there are reasons for mercy that the courts did not or could not recognize.
The co-defendant, Jack Pearcy, told other inmates long ago that the crime was solely his fault, but it wasn’t until 2017 that he said so in a sworn affidavit. He then invoked his Fifth Amendment right to stop talking about it; whether for fear of additional punishment or something else, we don’t know. But on that account, the courts have refused to take him seriously or hold a full hearing on whether he told the truth.
For the victim’s kin to demand Dailey’s execution is understandable, but they can hardly be expected to be objective. The governor should give their anger the same weight as those who are calling for clemency.
Those voices include Jack Powell, the foreman of the jury that convicted Clemente Aguirre-Jarquin, who was sentenced to death for a 2006 double murder in Altamonte Springs.
In an Orlando Sentinel guest column,
Powell said the jury didn’t know that DNA evidence hadn’t been tested, evidence that later overturned their verdict.
“Like the governor,” he concluded, “I once held a man’s life in my hands. I know how it feels to be sure someone did the crime. I know how it feels to hear about a terrible crime and believe whoever did it deserved a death sentence. And now, for the rest of my life, I will also know just how wrong a person, a group of people, and an entire criminal justice system can be. Gov. DeSantis should walk humbly to avoid this burden.”
So should Attorney General Moody, a former circuit judge, who’s described as “skeptical” to routine clemency reviews.
“Trust me, we put a lot of time and energy into making sure that claims have been heard and due process has been exhausted before we reach that point,” she said.
Due process is more about rules and technicalities than the underlying truth of guilt or innocence, and the state has thrown a heavy array of them at Dailey.
Former Attorney General Jim Smith supported all six of Graham’s commutations. The problem with the death penalty, he told us the other day, is that “there are too many mistakes.
“One,” he said, “is too many.” Florida has sent too many innocent men to death row. Before possibly killing another, why not a public review?