Life v. Property: Do We Value the Taking of Property More Than Human Life In This Country?

Earlier this month, the United States Supreme Court heard argument in the case of Beach Renourishment v. Florida (08-1141), a controversy surrounding the application of the Fifth Amendment's prohibition that "...private property [shall not] be taken for public use, without just compensation," otherwise known as the "takings clause." It's an interesting situation because the real issue before the highest court in our land is whether or not the highest court in our state can essentially impose a judicial taking of some beautiful beach property.

It seems that the beautiful beach property was created when the State of Florida literally pumped tons of sand onto existing beaches in an effort to stop erosion and to protect the pretty beachfront vacation homes that dotted the shoreline. The big brouhaha started when that land - the newly created beach formed by the pumped-in sand - was claimed by the State of Florida as Florida land. Voila! A takings clause argument argued by the landowners that's gone all the way to the Supreme Court.

And that's good.

Having the Florida Supreme Court's papers graded by the United States Supreme Court on whether or not federal constitutional provisions are being respected is how our system is supposed to work. Eminent domain cases are expensive to litigate, and they're expensive to appeal - and that makes sense, because usually there is a significant amount in controversy. That strip of Florida beach being fought over in Beach Renourishment isn't cheap, and its impact on neighboring property values isn't cheap, either.

Bottom line, our nation is governed by laws originating from only four different sources: the Constitution; statutes enacted by either the U.S. Congress or the state legislatures; administrative decisions established by agencies within the executive branch; and finally, case law precedent arising out of federal and state courts. It's extremely important to have a hierarchy within this system of laws, as well as within this system of governing - and having the U.S. Supreme Court decide whether or not the Florida Supreme Court is correct regarding the taking of this pumped-in sandy beach under the takings clause of the federal Constitution is right and just and proper.

Which brings us to the question for today: does our nation value the taking of property more than the taking of human life?

In 1972, the United States Supreme Court halted all executions in this country with the case of Furman v. Georgia, 408 U.S. 238 (1972). The High Court ruled that the death penalty was "arbitrary and capricious," violating the Eighth and Fourteenth Amendments to the Constitution because of a variation between state laws and the application of the punishment itself. Four years later, Gregg v. Georgia, 428 U.S. 153 (1976) changed all that; the Supreme Court once again allowed United States citizens (as well as foreign nationals) to be killed by the government as punishment for the commission of certain crimes. The death of the death penalty was short lived.

The Cost of the Death Penalty

On its website, the Florida Bar provides the following as public information:

Florida state courts are in crisis. Two years of budget cuts have undermined adequate and equitable funding of the court system, forcing layoffs and hiring freezes. In addition, by legislative formula, filing fees paid by court users do not directly go to fund the courts. On top of budget cuts and restricted revenue, caseloads have ballooned as the economy faltered.

A lot of additional information is provided at the Florida Bar's site, and it's periodically updated. However, the Florida Bar website appears to be primarily concerned with civil disputes, and the delays that civil litigants are experiencing in getting into a courtroom and achieving resolution of their lawsuits. Still, the financial crisis in Florida's state courts is not in dispute, nor is the tremendous expense that each state undertakes when it chooses to punish a citizen with death. Indigent defense of those accused of capital crimes is in particular crisis in this state.

This week, the Death Penalty Information Center published an opinion piece that initially appeared in the Virginian-Pilot. There, the argument is made that it makes economic sense to end capital punishment in this country, as the authors explain (quoting from the DPIC site):

"Doing away with the option of a death sentence makes sense on several levels....It would save the state from having to pay fees associated with lengthy trials and years of appeals. It would end the agony of repeated court hearings for the families of victims. It would eliminate the four perpetually understaffed capital defender's offices, whose attorneys handle appeals automatically generated when people are sentenced to death row.... Is the cost of an execution really worth it when, for less than half the price, we could put a killer in a prison cell, locked away from society for life?"

Elephant in the Room and on the Beach: Lack of Funding for Indigent Capital Defense Counsel in this Country

Still, within thirty days before the United States Supreme Court heard oral argument in the Florida eminent domain case, it had issued its opinion in Bobby v. VanHook, (09-144, November 9, 2009), finding that there was no legal grounds for stopping the execution of Mr. VanHook although they did stop the execution of an elderly Florida man, 77 year old veteran George Porter in Porter v. McCollum (08-10537, November 30, 2009). While Professor Linda Greenhouse opined in the New York Times, questioning the "selective empathy" of the High Court in the reading of VanHook and Porter side by side, it is clear that the opinions were founded upon the summary conclusion that one man had effective assistance of counsel and the other did not.

When Will the Reality of Money Be Considered in Capital Punishment Cases?

All of which leads us to this: men (and women) die in this country at the hands of state and federal government because the death penalty is recognized as a valid form of punishment. Floridian George Porter can attest that this ultimate punishment in all likelihood depends upon the abilities and efforts of defense counsel at trial. Even the most avid supporter of capital punishment has to acknowledge the financial expense of the death penalty in this country. It is extremely expensive to execute someone in this country, as the Virginian-Pilot estimates $2,000,000/inmate for Virginia. DPIC studies show that this country has spent two billion dollars ($2,000,000,000.00) executing people since 1976.  The Palm Beach Post has estimated that Florida has paid $51 million since 1976 for the luxury of having the death penalty.

Still, the crisis in criminal defense of the indigent accused of capital crimes escalates each year. The American Bar Association has an online collection on studies done by the various states on the extent of this crisis going back 15 years.

There is not enough money to properly finance capital defense cases for indigent defense counsel. Yet millions of dollars are spent each year in the prosecution of capital punishment cases - nationally, the total is in the billions. And while the United States Supreme Court sends its message that because of the effectiveness of defense counsel or lack thereof, Porter lives and VanHorn dies, with the Court moving on to decide who gets paid what for some sandy oceanfront beaches, we have to ask -- do we value the taking of property more than human life in this country?

Sadly, it appears that we do.

US Supreme Court Recognizes Florida Combat Veteran's Post Traumatic Stress as Mitigating Factor Barring Death Penalty in Porter v. McCollum

Perhaps discussion of the November 30, 2009, opinion by the United States Supreme Court in Porter v. McCollum (08-10537) is best begun by reading the first paragraph of the opinion itself

Petititioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man.  His commanding officer's moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

Of note, the opinion is short by Supreme Court standards (only 15 pages), it is also unsigned and per curiam

1.  It's a per curiam decision for the United States Supreme Court.  What's that telling us?

That this opinion is per curiam alone is worth some pondering.  Usually, the High Court has lots of paper with its results -- various justices writing their own explanations for the position they have taken on a case.  Here, there is just fifteen pages whose words speak for the entirety.  Consider Bush v. Gore, 531 U.S. 98  (2000), another per curiam opinion of the U.S. Supreme Court in a Florida case: it still had dissenting opinions. 

That Porter is per curiam is telling.  It's powerful.  PTSD in combat veterans is a mitigating factor that must be considered and respected by the states in death penalty cases. 

2.  Is Porter limited to its four corners?  The opinion doesn't read that way.

There are those that will argue that the Porter case is limited to the facts surrounding the crime for which George Porter, Jr. was convicted and it should not be considered as having a bigger impact.  Prosecutors will undoubtedly argue that the Porter case turned mainly on the specific facts involved in the trying of the defendant for the murder of his ex-girlfriend and her current boyfriend, and the actions (or lack thereof) by both the prosecution and the defense in that trial.  And it is true that the appellate arguments advanced by Porter are hinged upon ineffective assistance of counsel.

However, reading the opinion in its entirety, the Supreme Court appears to nip that challenge in the bud by its discussion of post traumatic stress disorder arising from combat.  Not only does the opinion point out that a medical expert testified that Porter's symptoms "...would 'easily' warrant a diagnosis ..." of PTSD, the opinion also references testimony given by Veterans Affairs Secretary Eric  Shinseki, where Mr. Shinseki testified that nearly 25% of Iraq and Afghanistan veterans seeking V.A. medical treatment were diagnosed with post-traumatic stress disorder (PTSD).  Consider these words from the opinion:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  ... The relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

The opinion doesn't limit itself to discussion of the circumstances of Porter's defense representation at trial, nor to Porter's own Korean combat trauma.  Its application simply cannot be wedged into a narrow application to George Porter's particular circumstance. 

3.  What happens now?

 First: George Porter, Jr. receives a new sentencing hearing, based upon an unanimous United States Supreme Court decision and while his conviction stands, the sentence of death does not.  Mr. Porter will not be executed by the State of Florida now. 

Second: Across the country criminal defense attorneys representing clients facing the death penalty must take heed that PTSD (at least for combat veterans) is a valid mitigating factor for which evidence must be investigated and fully presented as a legally recognized defense to the state's desire for capital punishment. 

The real debate is whether (or when) the Porter PTSD defense can be applied not only to combat veterans but to all those who suffer from severe, disabling post traumatic stress disorder arising from life-threatening events (e.g. victims of kidnapping, torture, rape, etc.).

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.

Herman Lindsay Freed From Florida Death Row, Will David Eugene Johnston Be Next?

Earlier this month, Herman Lindsay was freed from Death Row after the Florida Supreme Court ruled that there just wasn't enough evidence to find Mr. Lindsay guilty of anything -- much less sentence him to death.  Herman Lindsay became a free man this month, after being tried and convicted in 2006 for the robbery and murder of a pawn shop owner back in 1994.   In an unianimous verdict, the high court found that the trial court judge made a mistake in allowing the conviction to stand.

Meanwhile, over in Orlando, David Johnston is fighting to get off Death Row, as well....

Having decided the fate of Herman Lindsay, the Florida Supreme Court now holds the life of David Eugene Johnston in its hands.  Convicted of the 1983 murder of an elderly woman in her Orlando home, Johnston was scheduled to die in May.  However, the high court halted the execution in order for more DNA testing to be done.  There was a skirmish between prosecution and defense based upon missing DNA samples, and some accusations of mishandling of the DNA itself.

The Florida Supreme Court put a kabash to all this by ordering more testing, and an agreement was reached between counsel for an outside lab, based in North Carolina, to take the remaining samples and test them to see if Johnston's male chromosomes appear in the crime scene evidence.

For David Eugene Johnston, the test results mean everything.  If the North Carolina lab returns with results that exonerate him, then he may be joining Mr. Lindsay on the Florida highways and byways.  If not, then his execution may well be rescheduled sometime soon.

Another Example of the Power and Importance of the Florida Supreme Court

Within the past sixty days, two men sitting on Death Row -- and their loved ones -- have looked to the justices sitting on the Florida Supreme Court to make decisions that have literal life and death results.  

It's important to remember that the appellate process is an important and vital component to justice -- just because there is a trial, that doesn't mean that justice has been found.  And just because there is a conviction, it doesn't mean that the fight is over. 

To learn more about who sits on the Florida Supreme Court, go here.

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