News from Florida Capital Resource Center

Senator Thad Altman Files Bill Requiring Unanimous Juries for Capital Sentencing Proceedings

Posted Nov. 23, 2013

Senator Thad Altman has filed a bill that would finally require jury unanimity in Florida's capital sentencing proceedings.  This marks the third time such a bill has been filed in as many years.

Like all states, Florida requires that in order for someone to be found guilty of first-degree murder, a unanimous jury of twelve must agree on the defendant's guilt.  However, unlike all other states, Florida requires only a simple majority of seven to both find aggravating circumstances and recommend the death penalty.  In fact, every other jurisdiction that employs the death penalty (including the federal system) requires jury unanimity when it comes to the finding of aggravating circumstances, and with the exception of Alabama, every other jurisdiction also requires jury unanimity when it comes to recommending the death penalty.  However, Florida stands alone when it allows just seven jurors to recommend death - Alabama still requires a super-majority of ten.

Sen. Altman's bill, SB 334, would change Florida's capital sentencing procedures to bring them in line with other jurisdictions.  Requiring juries to be unanimous in both the finding of aggravating circumstances and sentencing recommendations means more reliability and more meaningful deliberation.  In fact, studies have shown that capital jurors in Florida deliberate on sentencing recommendations for less time than any other state. The reason for that is, quite simply, because jurors in Florida do not have to agree.  The requirement of unanimity forces jurors to carefully consider all points of view in the jury room before they can end deliberations, something many argue is probably a good thing when they are choosing whether someone will be executed.  

The Florida Supreme Court first urged the Legislature to make such changes in State v. Steele back in 2005, and though bills similar to SB 334 have been filed in past years, one has never reached the floor for a vote in either house.  Still, Sen. Altman's efforts to create a more reliable system are praiseworthy, particularly in the state that has exonerated more people from death row than any other.

Click here to read the text of SB 334

FSC Issues Stay of Execution for Thomas Knight to Review Florida's New Execution Drug

Posted Nov. 18, 2013

The Florida Supreme Court issued an order earlier today staying the execution of Thomas Knight, otherwise known as Askari Abdullah Muhammad.  Muhammad had raised a challenge over Florida's new execution drug, midazolam hydrochloride.  The State began utilizing the drug when, like many other states, it experienced difficulty procuring additional allotments of pentobarbital sodium.  Pentobarbital had been the first of three drugs administered during the lethal injection procedure and was used to render the inmate unconscious.  However, manufacturers of the drug had stopped supplying it to states because of its use in executions.  Florida responded by switching to midazolam hydrochloride instead.

However, because the drug has not traditionally been used to assist in executions, a number of inmates have raised legal challenges to the State's new use of the drug.  Despite two executions having already taken place under the new protocol, the Florida Supreme Court has now issued a stay for Muhammad and ordered an evidentiary hearing to determine whether the drug in the quantity used actually renders the inmate fully unconscious, as is required by law: 

As we explained in Lightbourne v. McCollum, 969 So. 2d 326, 351 (Fla. 2007), "[i]f the inmate is not fully unconscious when either pancuronium bromide or potassium chloride [the second and third drugs in the protocol] is injected, or when either of the chemicals begins to take effect, the prisoner will suffer pain."

The Court has determined that Muhammad's claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida's protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammad's 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida's lethal injection protocol will subject him to a "substantial risk of serious harm."  Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion).  In order to carefully consider this claim, we grant Muhammad's motion for stay, in part.  This matter is stayed until 5:00p.m., Friday, December 27, 2013, absent further order of the Court.  

Accordingly, we hereby temporarily relinquish jurisdiction to the Circuit Court of the Eighth Judicial Circuit, Bradford County, until Tuesday, November 26, 2013, for the narrow purpose of holding an evidentiary hearing solely on Muhammad's claim regarding the efficacy of midazolam hydrocholoride as an anesthetic in the amount prescribed by Florida's protocol....

Though the Court has issued a stay of execution, there is some concern over the short period in which the Court wants this important matter reviewed.  

Click here to read the full order

Darius Kimbrough Execution Is Seventh In 2013 - Most Since 1986

Posted Nov. 13, 2013

Darius Mark Kimbrough, convicted of the 1991 sexual assault and murder of Orlando woman, Denise Collins, was executed last night by lethal injection.  He was pronounced dead at 6:18pm.  

Kimbrough is the twelfth person to be executed during Governor Rick Scott's administration but the seventh executed this year - the most in any given year since 1986 when eight people were put to death under Governor Bob Graham.  While Gov. Scott started off slow, he has been signing death warrants at a much greater pace lately, and given the recent signing of the Timely Justice Act, that pace is only expected to increase in the future.  

Notably, Kimbrough is also the second person to be executed using Florida's new lethal injection protocol, which includes one drug never before used in executions.

There are now two active death warrants in Florida, that for Thomas Knight (aka Askari Abdullah Muhammad) and Paul Augustus Howell, though Howell's execution has been stayed by federal court order. Knight is currently scheduled to be executed Dec. 3, 2013 at 6pm.  

Florida Supreme Court Vacates Death Sentence and Murder Conviction for Roy Clifton Swafford

Posted Nov. 7, 2013

In a per curiam opinion issued earlier today, the Florida Supreme Court has vacated the death sentence and convictions for death row inmate Roy Clifton Swafford.  Swafford was convicted of the 1982 sexual battery and first-degree murder of Brenda Rucker in 1985, largely based on evidence that acid phosphatase was found on the victim, indicating she had been sexaully assaulted before being murdered.  However, the test used by FDLE to detect the acid phosphatase at the time has since been descredited, and subsequent testing conducted in 2005 by FDLE indicated the exact opposite - "that no acid phosphatase was found and no semen was identified."  

That revelation significantly weakened what was an already circumstantial case against Swafford, particularly when coupled with the fact that there was another viable suspect that Swafford's jury never heard about.  The Florida Supreme Court concluded, "In light of the evidence presented at trial, and considering the cumulative effect of all evidence that has been developed through Swafford's postconviction proceedings, we conclude that the totality of the evidence is of 'such nature that it would probably produce an acquittal on retrial' because the newly discovered evidence 'weakens the case against the defendant so as to give rise to a reasonable doubt as to his culpability."  The case has been remanded for a new trial, with the Court further advising the lower tribunal to consider whether an acquittal should be immediately granted on the charge of sexual battery, as the evidence supporting that charge appears insufficient to submit to a jury.  

Click here to read the full opinion

Florida Introduces New Lethal Injection Protocol

Posted Sept. 12, 2013

The Florida Department of Corrections has announced a new protocol for conducting executions by lethal injection which includes a new three-drug cocktail.  

The new protocol was revealed in response to a public record request made by death row inmate Marshall Lee Gore who is currently one of three people in Florida for whom there is an active death warrant.  Gore's execution is currently scheduled for October 1, 2013 at 6pm, and the new protocols would apply to him should his execution move forward.  

Under the former protocol, the first drug administered - used to render the inmate unconscious during the execution - was pentobarbital sodium, a drug commonly utilized over the last few years in other states' execution procedures as well.  As the pentobarbital injection is lethal on its own, several states provide for the administration of pentobarbital alone for executions.  However, as recently seen in Texas, states have been struggling to maintain stockpiles of the drug as manufacturers - many in Europe - have become increasingly more reluctant to supply it knowing that it will be used for such purposes.  This has left states like Florida with a minimal supply of pentobarbital, much of which has either expired or is set to expire in the very near future.  In fact, interrogatories revealed that the pentobarbital used in John Ferguson's execution last month was one of two shipments set to expire by November 30th of this year.

Under the new protocol, Florida will now use Midazolam Hydrochloride, Vecuronium Bromide, and Potassium Chloride to carry out its executions.  Midazolam hydrochloride, an anesthetic, will replace the pentobarbital injection in rendering the inmate unconscious. Vecuronium bromide now replaces pancuronium bromide, a paralytic used to stop the inmate's breathing.  Finally, an injection of potassium chloride is used to stop the inmate's heart.  As the new protocol includes two drugs new to Florida executions, a variety of legal challenges are expected.

New Lethal Injenction Protocol (Sept. 11, 2013)

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