Sunset falls over the Florida Supreme Court building
Sunset falls over the Florida Supreme Court building (Phil Sears)

The Florida Supreme Court appeared unwilling to find the Timely Justice Act unconstitutional, but left open the possibility it might strike certain provisions.

Passed by the 2013 Legislature, the act was an attempt to accelerate death penalty warrants once the initial round of post conviction appeals are complete in death penalty cases.

It was immediately challenged upon enactment by a coalition of defense attorneys. The act has many components, including suspensions for defense attorneys that are twice found to have provided ineffective assistance, reporting requirements on which inmates have exhausted their appeals and a deadline for the governor to sign warrants.

Martin McClain of McClain & McDermott in Wilton Manors argued the law was facially unconstitutional. He said it infringed on the governor’s authority, but the justices argued it had no effect on a governor’s clemency power.

Justice Barbara Pariente appeared unimpressed with the law’s effects. Nothing prevents the court from staying a case if there is a post-conviction successive motion—those dealing with new exculpatory evidence.

“There are some parts of this act that has me thinking it doesn’t accomplish what the Legislature wants it to accomplish,” Pariente said.

McClain emphasized the discretion taken from the governor over when he must sign death warrants. A list of more than 140 names were given to Scott by the clerk of the court as persons possibly eligible for a death warrant, a list he noted was inaccurate.

In McClain’s response brief to Attorney General Pam Bondi, he said those on the list could have their executions scheduled in the coming weeks.

“The state insists this will not happen. This court may not expect it to happen. To be candid, the petitioners have no way of knowing whether it will happen. And that—not predictions and speculations about any particular governor’s clemency practice—is the critical fact where jurisdiction is concerned. An inundation of warrants is made possible by the act.”

Justice R. Fred Lewis pushed aside McClain’s concern about errors, noting mistakes over who should be on the warrant eligible list can be corrected.

Pariente suggested the court might adopt an internal mechanism to enhance the accuracy and usefulness of the list.

Addressing the unlikely possibility of a governor someday issuing warrants en masse, Justice Peggy Quince asked if the court should require the Legislature to appropriate more money for capital defense attorneys.

“If we’re going to have a bunch more warrants, it’s going to be much more expensive,” McClain said. “That’s why this court needs to protect its rulemaking power, to extract money from the Legislature.”

The court appeared much more concerned about the suspension of capital defense attorneys found to have rendered ineffective assistance.

Pariente questioned how it could be constitutional for the court to suspend public defenders since they are a separate class of constitutional officers.

Lewis posed the question of a public defender taking cases directly and getting the adverse ineffective assistance rulings.

Carol Dittmar, senior assistant attorney general, suggested the public defender could then delegate the case to an assistant public defender, but Lewis disagreed.

A third issue raised was the requirement that defense attorneys go through a hearing and state a specific reason for exiting a case for conflict of interest. In the past, attorneys simply had to state they had a conflict.

Dittmar argued this was not unlike how transfer of cases occur between Public Defender officers and the Capital Collateral Regional Counsel.

Lewis disagreed, stating, “It totally changes the standard.”

“Maybe this is for an as-applied challenge,” Pariente said.

Dittmar asked the court to deny the emergency petition and take the as-applied approach if it feels it must strike certain provisions. Otherwise, let the law be tested through the trial courts.

On rebuttal, McClain said what constitutes a conflict is for the court to decide, not the state. He asked the act be stricken in its entirety, but added, “If this court wants to say I need to litigate this issue in each one of my cases, I’ll be happy to do that.”