Reversal of criminal protections ‘alarming’
Defense lawyers say decision part of trend
The Florida Supreme Court made it easier last month to execute some inmates who may be intellectually disabled.
A week before, justices threw out a legal standard used for more than 100 years as a safeguard against wrongful criminal convictions based solely on circumstantial evidence.
Legal experts and criminal defense lawyers say these latest decisions are part of an “alarming” trend from Florida’s high court: The new conservative majority is gutting protections for criminal defendants in quick succession — at times receding from precedent without being asked.
“In practicing law for 35 years, this is the most breathtaking and outrageous thing I’ve seen,” said Stephen K. Harper, a professor
and executive director of the Florida Center for Capital Representation at Florida International University. “The court is legislating as opposed to litigating. ... On their own, they decided to change the law substantively — and that to me is really dangerous.”
The conservative majority, which includes Chief Justice Charles T. Canady and Justices Ricky Polston, Alan Lawson and Carlos G. Muñiz, has not shied away from saying past rulings “got it wrong.” In January, justices decided juries do not need to unanimously agree when recommending a judge sentence someone to death, calling the 2016 mandate from its predecessors “clearly erroneous.” Continuously ignoring
stare decisis, the doctrine of adhering to previous rulings when making decisions on similar cases, undermines the credibility of the institution and creates chaos in the legal system, Harper said.
“From the public’s point of view, this is a rogue court,” he said.
But William Large, president of the Florida Justice Reform Institute, a lobbying group that works to limit “wasteful” civil litigation, said he doesn’t see the court playing a political role. Large praised Gov. Ron DeSantis’ latest Florida Supreme Court picks for “[continuing] his mission to restore the court to its proper role as the interpreter of our laws, not the author,” according to the Florida Times-Union. No court ruling is untouchable, Large told the Orlando Sentinel.
“Stare decisis provides stability but it doesn’t provide blind adherence,” he said. “Perpetuating a preexisting error in the law under the guise of stare decisis doesn’t serve society and undermines the integrity and credibility of the court. The court has shown its willingness to overturn unsound rulings in the criminal context — hopefully it will do so in the civil context.”
Court discards precedent. Neither the state nor the defense asked the Florida Supreme Court to discard the circumstantial evidence standard in the Bush
v. State ruling issued May 14, said Orlando criminal defense attorney Richard Hornsby.
On their own, justices decided to abandon the heightened standard, which held that if a case was based solely on circumstantial evidence and prosecutors were unable to exclude a reasonable hypothesis of innocence, the trial judge must acquit the accused rather than send the case to a jury, or the appellate court must reverse a conviction.
Sean Alonzo Bush, who is facing the death penalty for the 2011 murder of his estranged wife, wanted the state’s high court to review his conviction, which he argued was legally insufficient because it was based entirely on circumstantial evidence.
The Florida Supreme Court affirmed his conviction 4-1 and discontinued the special standard because it is “unwarranted, confusing and out of sync” with the rest of the country’s courts, according to the majority’s opinion.
The lone dissenting Justice Jorge Labarga argued Bush’s conviction would have stood even without changing the standard.
“This Court eliminates another reasonable safeguard in our death penalty jurisprudence and in Florida’s criminal law across the
board,” he wrote.
Attorney General Ashley Moody’s office, which handled the prosecution side of Bush’s appeal, did not respond to a request for comment.
Though the decision to discard it came in a murder case, the circumstantial evidence standard was most beneficial to people accused of drug crimes “simply because they were in the wrong place at the wrong time,” Hornsby said.
“Let’s say law enforcement raids a house and someone is standing by the table where the drugs are,” he said. “The prosecutor has to prove the drugs are theirs more than just by being in mere proximity. Because of that standard, prosecutors don’t bring hundreds of prosecutions.”
The pre-existing standard was “an important safeguard against innocent people being wrongly convicted based on flimsy evidence,” said Maitland criminal appellate attorney William Ponall.
“I have an appeal currently pending before a Florida appellate court where the circumstantial evidence standard that existed before Bush resulted in the trial court dismissing the charge against my client’s co-defendant,” Ponall said. “Now that Bush has been decided, it is unclear whether my client will get the benefit of the same standard that applied to his co-defendant.”
Hornsby predicts a “hundred-fold” increase in drug prosecutions because the state no longer has to worry about a circumstantial case being dismissed.
“It’s a concern for everybody,” Hornsby said. “We’re seeing a politicization of the Florida Supreme Court . ... The new standard for becoming a justice is, are you a member of the Federalist Society? Are you politically aligned with the governor — which is not how it should be.”
DeSantis recently appointed two new justices for the state’s high court, from a pool of candidates who were all affiliated with the Federalist Society, a conservative-libertarian organization that advocates for “the judiciary to say what the law is, not what it should be.”
The Federalist Society did not respond to request for comment.
“The Supreme Court’s decision to reverse so many of its owns cases in a short period of time leads the public to question whether those decisions are based on politics instead of the actual merits of a case,” Ponall said.
Hornsby said other recent decisions from the court show an “assault” on protections for criminal defendants, including receding from a 2010 ruling that it’s a “fundamental error” not to instruct juries on lesser offenses they can choose to convict on as an alternative to the charge a defendant faces, as well as an attempt to rewrite speedy trial rules that would “make it less helpful to criminal defendants.”
“I think it’s very alarming,” said Hal Schuhmacher, president of the Florida Association of Criminal Defense Lawyers. “It’s coming in this rapid succession of just blatantly ignoring the rules that have been established and protected us all.”
‘No second chance’Harry Franklin Phillips wanted the Florida Supreme Court to consider again if he was intellectually disabled before being put to death.
Phillips was convicted of first-degree murder for gunning down a Miami parole supervisor in 1982 and sentenced to death twice after the high court found his counsel was ineffective the first time.
During a decades-long appeals process, Phillips argued he could not be executed because of his intellectual disability. In 2002, the U.S. Supreme Court found that sentencing intellectually disabled people to death is a “cruel and unusual” punishment forbidden under the Eighth Amendment.
To meet the intellectual disability standard, Florida required defendants to have an IQ of 70 or below, a condition that was ultimately struck down by the U.S. Supreme Court in 2014 because justices said the strict cutoff “creates an unacceptable risk that persons with intellectual disability will be executed.”
State courts found Phillips failed to meet the standard, scoring 70, 74 and 75 on IQ tests.
To fix the issue, Florida would have to consider whether a defendant’s IQ score fell within the test’s 5-point margin of error, which expanded the score range to between 65 and 75 points. The state Supreme Court ruled in 2016 the new rule would apply retroactively, giving inmates like Phillips another chance to prove their intellectual disability.
But the Florida Supreme Court denied Phillips’ latest appeal May 21 and decided to go further, ruling that it “clearly erred” when deciding the rule should apply to older cases.
“While this Court has consistently acknowledged the importance of stare decisis, it has been willing to correct its mistakes,” the majority wrote. “... Stare decisis provides stability to the law and to the society governed by that law. Yet
stare decisis does not command blind allegiance to precedent.”
Justice Labarga said the ruling was “patently unfair” because some death row inmates had received new hearings under the retroactive rule.
“Yet again, this Court has removed an important safeguard in maintaining the integrity of Florida’s death penalty jurisprudence,” Labarga wrote. “The result is an increased risk that certain individuals may be executed, even if they are intellectually disabled.”
The court’s decision to overturn the unanimous jury rule for defendants in capital cases drew praise from conservative Ocalabased State Attorney Brad King in January. King could not be reached for comment this week.
“We’ve seen in this experiment with unanimous jury verdicts for death recommendation that the results are arbitrary,” King said then. “You basically let one juror out of 12 dictate the result and that’s not democracy . ... That’s not a legitimate process when one juror can hijack the entire sentencing result.”
But Melba Pearson, the former prosecutor and ACLU of Florida deputy director who is now running for Miami-Dade state attorney, said the high court’s removal of protections for defendants in capital cases is “concerning” given the high number of exonerations from Florida’s death row.
In light of the Phillips case, prosecutors will have to take a more proactive role to make sure they’re not seeking the death penalty for someone who may have intellectual disability, Pearson said.
“We have to make sure we get it right, especially when it comes to the death penalty,” she said. “There is no second chance.