Last week, John Marek was Executed by the State of Florida

John Marek died last Wednesday due to lethal injection at the hands of the State of Florida.  His hard-working defense attorney -- who had filed last minute appeals to the Supreme Court trying to keep Marek alive -- didn't go to watch.  Who can blame him. 

It was only a couple of weeks ago that we posted on the eleventh hour efforts to save Marek's life.   There was evidence that he wasn't the killer in this case.  There were procedural concerns regarding recusal of a lower court judge.  There is always the bigger picture -- the controversy over the constitutionality of the death penalty as well as the all-too-often forgotten concept of mercy. 

No matter.  There was no reconsideration of Marek's case by any of the powers that be and the sentence of punishment by death was carried out.   On August 19, 2009, the U.S. Supreme Court denied Marek's application for a stay of execution so they could consider his legal arguments.   And, minutes before the execution, it was confirmed that the Governor of Florida would not come forward to stop things. 

John Marek's Death was not obviously horrific, as other lethal injection executions have been.

It is reported that John Marek did not twitch or convulse or otherwise evidence any improprieties during the 13 minutes it took him to die.  Of course, we've already discussed how the Florida drug combo actually paralyzes the body, so observers wouldn't know if Marek was alive and aware for most of those 13 minutes but unable to move or speak ... or if he was in pain.  Many argue that the lethal injection method of killing someone is easier on the observers but may be very cruel to the dying inmate. 

Marek's Last Meal and Last Words

John Marek had a lettuce, tomato, and bacon sandwich (mayo, wheat bread) with onion rings and french fries -- and a Dr. Pepper -- for his last meal.   His last words were of his Christian faith, as he spoke "Jesus remember us sinners," followed by the Lord's Prayer --- and it is always ironic to remember that Christ, too, suffered execution by the government those many years ago. 

Marek lived in a small Death Row cell for 26 years. 

May he, and his loved ones, and the loved ones of murder victim Adela Marie Simmons, -- and that hard-working defense attorney who tried so hard and so well -- all find peace. 

Today John Marek Appeals to US Supreme Court, Scheduled to Die in 12 Days

John Marek's attorneys are fighting hard to stop the State of Florida  from killing their client.

Today, they filed an appeal with the highest court in the land, the United States Supreme Court, to try and stop the execution of John Richard Marek.  With the Florida Supreme Court ruling that it will not hear anything further in this case, Marek is left with only the U.S. Supreme Court and the Governor of Florida between him and an otherwise certain execution.  (Read docket notice of Marek's Motion to Stay Execution here -- Justice Thomas is assigned to this request. )

What arguments can Marek possibly make to the U.S. Supreme Court now -- over 25 years after the crime occurred for which he was convicted, and within two weeks of his scheduled execution?  Lots of people don't understand the importance of the appellate process in death penalty matters, but Marek's case gives us some idea of how vital appeals can be.  When the government is about to kill one of its own citizens, then the courts must insure that the government is not violating any legal rights in doing so. 

And it appears that Marek has some valid legal arguments to make, such as:   

Evidence that Marek Was Not the Killer

It is not contested at this point that Marek was present at the scene where Adella Simmons was murdered one night on Dania Beach, back in 1983.  However, there is evidence that Marek did not kill the woman that he and his buddy, Ray Wigley, picked up on the Turnpike where her car had broken down. 

The evidence comes from Wigley himself.  Seems he admitted to killing the woman to several folk while he was incarcerated.  Those inmates have come forward with testimony that Ray Wigley -- who was not sentenced to death, as Marek was -- told people on several occasions that he murdered Ms. Simmons, not his pal Marek.  Wigley himself cannot testify.  Wigley is dead.

Past Appellate Arguments Regarding Recusal of Trial Court Judge 

Part of Marek's earlier arguments have been based upon the issue of when a judge should recuse himself.  (For those interested, the Reply Brief filed by Marek's counsel before the Florida Supreme Court is online for viewing.)  This is an issue recently addressed by the US Supreme Court. 

In a far-reaching decision released this past March,  Caperton v. A.T. Massey Coal Co. [08-22] (5-4 opinion),  the high court recognizes that due process is violated when someone is before a trial court judge has "...had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent...." and that judge does not recuse himself (withdraw from presiding over the matter).  Caperton has been criticized for not giving enough direction on when a trial judge should and should not recuse himself (as the dissents themselves discuss), therefore judicial recusal is a topic in Marek's appeal which may be of interest to the Justices. 

What is Before the US Supreme Court Right Now Regarding John Marek

First things first.  Justice Thomas is overseeing the Motion to Stay Execution.  Of course, halting the killing scheduled in 12 days is the first priority.  Afterwards, the Petition for Writ of Certiorari and Motion for Leave to Proceed In Forma Pauperis will be heard.  The deadline for the State of Florida to respond is September 7, 2009.   As of this posting, briefing was not available for review.

U.S. Supreme Court nixes hearing Thompson v. McNeil (08-7369) - but does 32 years in a Death Row cell amount to cruel and unusual punishment?

This month, the United States Supreme Court declined to hear a well-watched Florida case, Thompson v. McNeil (08-7369), where William Lee Thompson, sentenced to death in a Florida court back in 1976, requested their consideration of the question: does extended delay of the sentence of death amount to cruel (if not unusual) punishment and therefore violate the 8th Amendment?

Well, the High Court did fail to grant writ (opinion), but that doesn't mean we don't have a lot to consider from the opinion that did spring forth. Let's ponder the following:

Justice John Paul Stevens' Statement

First, I've read that Justice John Paul Stevens issued a dissent in this case; however, technically it was not a dissent but a statement. And, a statement that conforms to his longstanding position that the the death penalty is wrong. (Stevens already called for an end to the death penalty.)

In it, Stevens wrote, "[o]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," to which Justice Stephen Breyer gave his support in a formal dissent from the denial of certiorari.

Justice Stephen Breyer's Dissent

In his dissent, Breyer went into the appellate pathways that the Williamson case has taken over the past 30+ years, including such considerations as the fact that Williamson's spent over half his life on Death Row while the appeals have taken a life all their own, and the reality that Williamson's accomplice - who might have been more culpable than Williamson in the underlying crime - was not sentenced to death. Interesting point.

Justice Clarence Thomas' Concurrence

Justice Clarence Thomas, meanwhile, wrote his own concurrence to the Court's denial of certiorari. In it, Thomas opined ""[i]t is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel, ..." and thereafter provided extensive details on the underlying crime for which Thompson was convicted to support his position. (It is not disputed that the crime for which Thompson was convicted was shocking.)

Why Isn't This Cruel - If Not Unusual? Oh, and What About the Budget?

States across the country are arguing - and deciding, case in point being New Mexico (see last Monday's post), that capital punishment is too darn expensive given the state of the economy.

And, here comes a case where the U.S. Supreme Court has the opportunity to address this situation - is it cruel to keep a man, isolated, in a 6 foot by 9 foot cell, for over 30 years after he's had constitutional guarantees of a speedy trial that apparently aren't going to grant him anything close to a speedy appellate process?

Wouldn't providing for a speedy appellate process in death penalty cases not only help prisoners on Death Row, but help society as a whole by streamlining the costs of capital punishment?

This practicality was the jumping-off place for Justice Stevens in his Williamson Statement, where he pointed to his past work in Baze v. Rees, 533 U.S. __ (2008), slip op. at 12, quoting his prior words there, " ... time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."

 
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