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It all started in 1997, when Florida Supreme Court Chief Justice Gerald Kogan began speaking out against the death penalty and saying the Legislature was out of touch with the public for supporting it. Tom Warner, a Republican state representative at the time, and other GOP lawmakers took Kogan’s comment as a direct challenge. “He was giving speeches at bar groups and civil community groups,” says Warner, now Florida’s solicitor general. “I thought he was out of touch.” To prove his point, Warner and his staff drafted a proposed constitutional amendment to let the public decide. The amendment would have written the death penalty into the state constitution and stripped the Florida Supreme Court of its power to declare it unconstitutional — even if the method of execution were challenged. Supporters called this letting the people decide, while critics called it an assault on the judicial system. In 1998, 73 percent of voters supported the ballot initiative amending the constitution. But in 2000, that outcome was thrown out by the state supreme court, on grounds the initiative summary was unclear and misleading. The justices said the ballot summary failed to inform voters that the amendment would affect other criminal punishments besides the death penalty. Now, the amendment is an issue again. On Nov. 5, voters have another chance to put the death penalty into the state constitution. But some observers say this ballot initiative is more about conservative chest-beating than about protecting the state’s ability to implement capital punishment. “The supreme court yanked it out of the constitution after it was approved by the people,” says state Sen. Victor Crist, R-Tampa, the main sponsor of the proposed amendment. “That’s their right to do that, just like it’s my right to rewrite the summary and throw it back out there.” But legal experts warn that by limiting the jurisdiction of the Florida Supreme Court, Crist and other sponsors of the death penalty ballot initiative are taking a risk because federal judges are increasingly questioning the death penalty. Over the past several years, conservative legislators and Gov. Jeb Bush have accused the Florida Supreme Court of allowing capital cases to get bogged down in lengthy and frivolous appeals. Bush and GOP legislative leaders sought to limit the judiciary’s power over implementation of the death penalty by proposing measures such as setting a five-year time limit on appeals, stripping the high court of its rule-making authority and establishing a separate appellate court to review capital cases. In a special session called by Gov. Bush in 2000, legislators passed a number of measures to speed up the death penalty appeals process by requiring attorneys to file direct appeals and post-conviction petitions at the same time. The proposal also limited publicly funded attorneys to one post-conviction appeal, even if new evidence was uncovered. But the supreme court unanimously overturned this legislation a year later on the grounds that it violated the constitutional separation of powers by interfering with the judicial branch’s ability to set its own rules of procedure. The only provision the high court let stand was the one making lethal injection the primary method of execution. In the wake of that defeat, critics say, the effort to place the death penalty amendment on the ballot a second time represents the conservative Legislature’s determination to undermine the court, the majority of whose justices were appointed by Democratic governors. “It’s obvious that the Republican-controlled Legislature looks upon the Florida Supreme Court as an institution of the Democratic Party,” says former Justice Kogan, who served on the high court from 1987 to 1998 and now practices at Wetherington, Klein & Hubbart in Miami. “This is something to show the supreme court that they’re the bosses, that what they say goes and that they’re not going to let the Democratic Party get away with something.” ‘CRUEL AND UNUSUAL’ The proposed amendment would change the language of the state constitution from “cruel or unusual” punishment to “cruel and unusual punishment” to match the language of the Eighth Amendment to the U.S. Constitution. This would limit the state supreme court’s ability to define “cruel and unusual” more broadly than the U.S. Supreme Court defines the term. It also would prohibit the state supreme court from holding the death penalty unconstitutional under state law. As long as the federal courts uphold the constitutionality of the death penalty, execution would be constitutional in Florida. “The people pushing this thing basically don’t like the Florida Supreme Court,” says Michael Mello, a Vermont Law School professor and former death penalty appellate lawyer in West Palm Beach, Fla., who represented serial killer Ted Bundy in the 1980s. “They think that this is a way of getting back at the supreme court” for supporting manual ballot recounts after the disputed 2000 presidential election, he said. But Sen. Crist denies that the renewed effort had anything to do with retribution. He says he is concerned with reducing the number of “frivolous” appeals filed in cases that leave the families of murder victims waiting 10 years or more before seeing justice. By tightening the language, Crist says, the amendment would cut the number of appeals attorneys could file in state court. They could no longer file one appeal claiming the death penalty is “cruel,” then another claiming it is “unusual.” They would have to argue both simultaneously. But defense attorneys say that’s unnecessary because they’re already filed together anyway. “I have no clue what he’s talking about,” said Raag Singhal, a Fort Lauderdale, Fla., defense attorney who has handled capital cases for eight years. “You have to raise all the issues on appeal or you lose them. Cruel or unusual arguments usually go together.” LEAVING HIGH COURT ALONE In reaction to the Florida Supreme Court’s overturning the 1998 ballot initiative on the basis that the summary was unclear, the Legislature responded by passing a law allowing its own ballot initiatives to exceed the normal 75-word limit. Then the Legislature approved a 514-word summary, and put the entire text of the amendment on the ballot to preclude any claims that the initiative was misleading to voters. County election officials around the state challenged the legality of printing the entire initiative on the ballots. But last month, the 1st District Court of Appeal upheld Leon Circuit Court Judge Kevin Davey’s ruling that the summary met state election standards. The supreme court declined to hear election officials’ appeal. After Nov. 5, Crist says, he plans to leave the high court’s jurisdiction over the death penalty alone. That’s because the court has finally begun to show initiative in fixing its own problems, he says. “We filed legislation that made it clear they needed to clean up their act or we were going to do it,” Crist says. “Rather than get into a standoff with the Legislature, they modified some of their rules and made things more efficient.” In the past year, the supreme court has issued new standards requiring all trial and appellate lawyers in capital cases to have five years experience. It also has shifted its original position and adopted rules similar to the Legislature’s governing the use of DNA testing in post-conviction criminal appeals. “At this point, we’re kind of ready to sit back and see how everything works,” Crist says. “We’ve tinkered and tinkered. My advice to abolitionists now is to chill out for awhile and let the process work.” Not all death penalty advocates feel that way. Charlie Crist, the Republican candidate for Florida attorney general, says he intends to continue pressing to shorten the death penalty appeals process and to carry out executions more quickly. He says he would consider the controversial option of pushing for a special appeals court to replace the state supreme court in hearing death penalty appeals. But critics wonder why legislators continue to push the death penalty amendment when it’s unlikely to have any actual effect on Florida’s use of capital punishment. They say the state supreme court has never seriously challenged the death penalty. In 1998, when the state supreme court was weighing the constitutionality of Florida’s use of the antiquated and unpredictable electric chair in Leo Jones v. State of Florida, the justices voted 4-3 to retain “Old Sparky.” While upholding the use of electrocution, five of the seven justices urged legislators to adopt lethal injection as the primary mode of execution. The Legislature then passed a law switching methods and executions continued. “The Florida Supreme Court is not an anti-death penalty court,” Mello says. “It has never been packed with bleeding hearts. If anything, the court has kept the death penalty alive by making sure it’s fair.” Critics also predict that the pro-death penalty’s camp’s decision to propose a constitutional amendment deferring to the federal courts on the legality of capital punishment could backfire. That’s because federal courts, including the U.S. Supreme Court, recently have been raising questions about the death penalty and ruling less favorably toward it. In Atkins v. Virginia, the U.S. Supreme Court recently declared the execution of the mentally retarded unconstitutional. And in Ring v. Arizona, the high court recently held that juries, not judges, should decide on sentencing in capital cases. CHANGE IN COURT’S MAKEUP Meanwhile, the Florida Supreme Court has done little or nothing to question the status quo. “At least this year, most of the Florida Supreme Court death penalty opinions have been bad for the defense,” says Singhal, who most recently represented serial killer Aileen Wuornos before her execution on Oct. 9. One reason conservatives have turned down the heat on the state supreme court is their confidence that the court is about to change. If he wins re-election, Gov. Bush has an opportunity to tip the balance toward a more pro-death penalty supreme court. His first selection to the high court was Raoul Cantero III, a Catholic whose view of the death penalty is not yet clear. But Bush will get another chance if he wins the Nov. 5 election because of the upcoming retirement of Justice Leander Shaw Jr., who was appointed by former Democratic Gov. Bob Graham and is generally viewed as one of the more liberal justices on the bench. With the potential rightward shift in the court’s political makeup, state Sen. Locke Burt, R-Ormond Beach, a co-sponsor of the death penalty amendment, doubts that Florida’s capital punishment law is in any peril. “Will this amendment result in more people being put to death? No,” Burt says. “Move the process faster? Probably not. And if it doesn’t pass, we’d still have that death penalty in Florida.” So what’s the point of the ballot initiative? “It clears up some questions that have been raised in the past in front of the Florida Supreme Court, and it solves the problem of what happens in 15 years when the court says it is no longer going to allow execution by lethal injection,” Burt says. Both Burt and Crist argue they are simply protecting the will of the public. “As long as the people want the death penalty, the job of the Legislature is to make sure it’s running properly,” Crist says. “That’s all we’re doing here.”

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