For weeks, Seth Penalver had been desperate to get an audience with Rick Scott, if just for a few moments. While lawmakers and lobbyists had also been vying to get his attention as he made his final decisions on bills passed in the just completed legislative session, Penalver was sure that if he could get 10 minutes with Scott, he could convince him to veto a measure that could lead the state to kill an innocent man.
If that sounds hyperbolic, Penalver doesn’t really care. He says that if the Timely Justice Act had been law a few years ago, he might not be alive today. Penalver had been imprisoned for 18 years when a Broward County jury found him not guilty last December in a triple homicide that occurred in 1994.
The bill, sponsored by Fort Walton Beach House Republican Matt Gaetz, contains a number of reforms to the death penalty process that capital punishment foes applaud. But the bill’s centerpiece is a provision that would speed up the execution of those on death row, something that critics contend is the last thing this state needs to approve.
But a canned response from a staffer last week dismissed any audience with the governor.
“Governor Scott is sorry his schedule does not permit him the opportunity to meet with you personally to discuss your opinions about legislation,” wrote Warren Davis from the Office of Citizen Services. “The Executive Office of the Governor follows all bills as they move through the legislative process. Please be assured, Governor Scott will consider your comments and those of other concerned citizens.”
“To me, that’s saying, ‘I don’t care about anyone’s life that could be innocent that’s on death row, man or woman,’ so I mean, it’s hurtful,” Penalver told CL by phone last week. “All I wanted was 10 minutes and I would have been able to show him where the State Attorney’s office of Broward County and the Miramar Police Department withheld evidence that proves my innocence. And had this law been in effect at the time of me being sentenced to death, I probably wouldn’t be talking to you today, you know?”
After the Broward jury found him not guilty in the murders of Casimir “Butch Casey” Sucharski, Sharon Ander and Marie Rogers, Penalver became the 24th exonerated death row prisoner in Florida. The state leads the nation in such exonerations, many of which were the result of new DNA evidence. Others were prompted by confessions, recanted testimony, incompetent counsel or other previously uncovered information.
Upon hearing the forewoman read the first “Not Guilty” verdict in the courtroom, Penalver’s attorney, Hilliard Moldof, buried his head in his hands and began to sob quietly. After the second “not guilty” verdict was read, Penalver, sitting to his left, began openly weeping. After all the verdicts were read, he arose from his chair, turned and kneeled, bowing his head into the seat of his chair as if in prayer.
His first trial had ended in a hung jury. He and his co-defendant, Pablo Ibar, were tried again separately in 2000. Both men were found guilty and sentenced to death. But in 2006 the Supreme Court overturned Penalver’s conviction on appeal and granted him a new trial. According to the South Florida Sun-Sentinel, the main reason was that “the video was so poor the justices couldn’t tell if Penalver was the killer who wore a hat and sunglasses.” New evidence was also brought forward that an investigator arranged for a Crimestoppers reward to go to an informant in the case.
Looking back five months later after his release, Penalver insists he’s not bitter.
“I mean, you’ve got two choices,” he said after a long day of working at an auto-detailing shop in Fort Lauderdale. “You can enjoy the rest of life that you have, or you can be mad, miserable, upset. … you just gotta let it go.”
Penalver was on death row for 13 years, which happens to be the average duration of all death row stays in the Sunshine State. Matt Gaetz and other supporters say passage of the Timely Justice Act would cut the time after a death row conviction roughly in half, to about seven years.
During debate on the bill on the floor of the Florida House in April, Gaetz came up with this money quote about his legislation: “Only God can judge. But we sure can set up the meeting.” He has said that the long delays begin with the Supreme Court, where all death sentences are appealed. (A spokesman for Gaetz told CL he was unavailable for comment.)
Tampa area Democrat Jamie Grant was a co-sponsor in the House. He said on the floor during debate, “We’re not speeding up the death penalty. We’re just slowing down fraud. We’re just simply saying you can’t abuse rules of civil procedure in the appellate process.”
A professor at Florida International University’s College of Law, Stephen Harper, nearly gags when he’s read Grant’s quote. “All litigation is legitimate litigation if somebody’s life is at stake,” he responds. Harper worked for nearly three decades inside the Miami-Dade Public Defender’s Office. He says if a state has a death penalty system it’s imperative that there be a “significant amount” of post-conviction remedies available, because it’s “very complicated stuff.”
Gaetz said the bill will enhance the deterrent factor of the death penalty, will be a “tremendous help to victims’ families,” and will cut down stays on death row to “below 10 years.”
As is so often the case, the Sunshine State is running counter to the nation on this issue. While the number of death sentences has fallen dramatically in recent years elsewhere in the country, Florida has been tops in both 2011 and 2012. Last year, 78 death sentences were issued nationwide, the fewest in 20 years and the second lowest since the U.S. Supreme Court reinstated capital punishment in 1976. But 22 of those sentences were handed down in Florida.
We may be in the running to be the national leader in executions, too. Texas currently boasts this dubious distinction, having executed five people so far this year to Florida’s one (with another scheduled for May 29). But Gov. Scott is signing death warrants at such a rapid pace — five this year, three during a recent span of less than four weeks — that “Florida is on track to pass Texas as the busiest, bloodiest execution state,” says Mark Elliott of Floridians for Alternatives to the Death Penalty, “and Governor Scott’s legacy would become the most executing governor in Florida’s history.”
Florida also remains an outlier when it comes to allowing capital case juries to recommend a death sentence by a simple 7-5 majority. A bill sponsored in the Senate by Orlando Democrat Darren Soto and Melbourne Republican Thad Altman would have changed that to a unanimous jury vote in the penalty phase of a murder trial, but it failed to pass.
In 2006, an eight-member panel convened by the American Bar Association finished up a two-year study of Florida’s death penalty system, and found it wanting. Among their recommendations were the creation of a state commission to investigate wrongful convictions in capital cases; a second commission to review factual claims of innocence; adoption of new standards for the qualifications and compensations of death penalty and appeals attorneys; a study of racial disparities in capital punishment cases; and establishment of new rules for clemency.
But the report ended up gathering dust, and eight people on Florida’s death row have been executed since the report was published.
That hasn’t been the case in other states that ordered such reports. In 2000, Illinois’ then-Governor George Ryan created a commission to study the capital punishment system following the exoneration of 13 individuals who had been serving on death row. He then called for a moratorium on executions that stayed in place until last March, when the current governor, Pat Quinn, signed a death penalty ban and reduced all death row prisoners’ sentences to life without parole.
Earlier this month, Maryland Governor Martin O’Malley signed legislation abolishing the death penalty and replacing it with the sentence of life imprisonment without the possibility of parole. In doing so, he made the Mid-Atlantic state the sixth in six years to reject capital punishment. All six would be considered blue states, but the momentum may carry over to red states, too. In Nebraska earlier this month, although a bid to abolish the death penalty failed to win a two-thirds majority to kill a legislative filibuster, it did gain the support of a majority in the Republican-dominated state senate.
For the third consecutive year since being elected to the Legislature, Tallahassee House Democrat Michelle Rehwinkle Vasilinda proposed a bill this spring repealing the death penalty. She says she was grateful that Gaetz, who chairs the Criminal Justice Subcommittee, gave her time to debate the bill, and afterwards she said several Republicans told her privately they supported her effort. But they didn’t do so in the committee.
The Gaetz bill does do some positive things, says Mark Schlakman, senior program director at the Center for the Advancement of Human Rights at Florida State University and a member of the ABA’s Florida Death Penalty Assessment Team. Those provisions include reestablishing a North Florida office of the Capital Collateral Regional Counsel (CCRC), which is responsible for legal representation in post-conviction proceedings for those sentenced to death. (There currently are CCRC offices for Middle and South Florida.) The bill would also revise the experience requirements for attorneys working for the CCRC, and direct the courts to furnish to the Florida Bar findings that an attorney provided deficient representation.
Those concerns go to what Richard Dieter of the Death Penalty Center in Washington D.C. calls the root of the problem, “the mistakes made by poor representation on trial or on appeal.”
According to a CNN report, Senate President Don Gaetz (father of Matt) has said that his son’s bill will go to Scott’s desk on June 3. The governor has 15 days to sign or veto after that.
FSU’s Schlakman thinks the bill will be subjected to serious judicial review, in that it takes away part of the governor of Florida’s inherent clemency authority. “Only the governor can determine when a clemency review is complete,” he says, arguing that the Legislature has now attempted to take that right away with the Gaetz bill.
Of the more than 400 prisoners currently on death row in Florida, there are reportedly 100 whose capital cases are ready for consideration for clemency, according to FSU’s Mark Schlakman, meaning they have already gone through the court system — undermining the argument that the judicial branch is a part of the problem in the long delays.
Meanwhile, Seth Penalver moves on, finding jobs wherever he can through friends. He’s filled out applications, but says when an employer does a Google search, “it just lights up like a Christmas tree.” Florida does have a law to compensate death row inmates improperly imprisoned, but only for those with no prior arrests. Penalver has two priors, which means he won’t be getting a penny from the state.
Or 10 minutes with the governor.
This article appears in May 30 – Jun 5, 2013.