Neal Dupree, Capital Collateral Regional Counsel
Neal Dupree, Capital Collateral Regional Counsel (CANDACE WEST / COPYRIGHT 2013)

Because capital punishment is different, the lawyer for a prisoner who killed a man to reach death row may not honor his client’s wishes by abandoning an appeal, the Florida Supreme Court ruled.

James Robertson, 48, had already spent more than half his life in prison when he strangled his cellmate in 2008. He threatened to kill again if he wasn’t executed.

In 2012 Charlotte Circuit Judge Christine Greider allowed Robertson to plead guilty to first-degree murder and sentenced him to death.

JAMES ROBERTSON, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Case no.: SC13-443

Date: July 10, 2014

Case type: Death penalty representation

Court: Florida Supreme Court

Author of opinion: Per curiam

Lawyers for petitioner: Public Defender Howard L. Dimmig II and Assistant Public Defender Steven L. Bolotin, Bartow

Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Stephen D. Ake, Tampa

Panel: Majority: Chief Justice Jorge Labarga and Justices Barbara J. Pariente, James E.C. Perry and R. Fred Lewis; Dissents: Justice Peggy A. Quince and Justice Charles T. Canady with Justice Ricky Polston

Originating court: Charlotte Circuit Court

While the case was pending on direct appeal to the Florida Supreme Court, Assistant Public Defender Steven Bolotin asked to withdraw from representing Robertson. He argued he would have to violate the ethical requirement that a lawyer accede to his client’s decisions—an untenable position.

On July 10, the high court ruled 4-3 that despite his qualms, Bolotin may not withdraw.

“We conclude that there is simply no reason to depart from our reliable, established and necessary procedure for requiring current counsel to proceed with diligent appellate advocacy to facilitate our mandatory review in death penalty cases where the defendant, in effect, seeks this court’s assistance in being put to death,” the majority’s unsigned opinion states.

The court gave Robertson the option of filing a separate brief.

Eugene Zenobi, Miami regional counsel for the state office that handles capital conflict cases, said the justices were emphasizing their crucial role in controlling the ultimate sanction.

“The operation of the death penalty transcends other issues,” he said.

Death Penalty Oasis

In Florida, whose death row housed 394 inmates as of July 13, the death penalty is frequently employed, especially in the Jacksonville area.

The state chalked up 15 death sentences and seven executions last year, according to the Death Penalty Information Center. Together Florida and Texas, with 16 executions, accounted for 59 percent of all U.S. executions.

Florida continues to buck trends detailed in the Washington-based center’s 2013 year-end report:

• Nationwide 80 new death sentences were handed down in 2013, little more than 2012 (77), the lowest number since 1973.

• California, which accounted for 30 percent of the country’s death sentences in 2013, hasn’t carried out an execution in seven years.

• Last year, the sixth in a row, Texas had fewer than 10 death sentences; in 1999, it listed 48.

“The recurrent problems of the death penalty have made its application rare, isolated, and often delayed for decades,” Richard Dieter, executive director of the Death Penalty Information Center, said in a statement released with the report.

Not so in Florida, although even here, efficiency doesn’t seem to be the overarching goal.

A majority of the current Supreme Court justices appears to be trying to apply the death penalty as fairly as possible. The buzzword is “proportionality.”

And the justices do not want Death Row inmates with weak minds or strong death wishes influencing these incredibly difficult decisions.

No Do-it-yourselfers

“The court has been very consistent with where they’ve been going in the last few years,” said Neal Dupree, the Capital Collateral Regional Counsel in Fort Lauderdale for 16 years. Dupree’s agency will get Robertson’s case if his death sentence is upheld on direct appeal.

“They just don’t want people representing themselves,” he said of the justices. “They want competent attorneys doing death penalty work.”

He gave two examples to underline his point.

One is the court’s July 3 amendment to Florida Rule of Criminal Procedure 3.851. The amendment says a defendant under sentence of death may not represent himself in a capital post-conviction case in state court.

“A defendant sentenced to death does not have a right to self-representation on direct appeal under either the United States or Florida Constitutions,” the unsigned opinion says.

The other example is the 2012 high court ruling in Gordon v. State that Death Row inmates may not appear pro se in any post-conviction appeals.

“When you have limited availability of legal resources in prison, you’re better off with an attorney,” Dupree said.

Just as the high court majority has been consistent, so has the conservative minority.

Justice Charles Canady dissented in Gordon two years ago.

“This is Mr. Gordon’s case, and it is a case in which Mr. Gordon’s life is at stake,” Canady began his dissent.

“I would not presume to impose post-conviction appeal counsel on Mr. Gordon if he has made a knowing, informed and voluntary choice to repudiate that counsel.”

Canady, joined by his frequent collaborator Justice Ricky Polston, also dissented.

“The majority unjustifiably infringes on Mr. Robertson’s right to make the fundamental decision of whether to pursue the appeal of his death sentence as well as his right to a lawyer who will follow the ethical imperative to abide by Mr. Robertson’s decision concerning the objectives of representation,” Canady wrote.

“I dissent from this infringement of Mr. Robertson’s rights.”

Robertson’s Life

Greider, the trial judge, cited factors that may actually mitigate against imposing the death penalty as reasons to let Robertson plead guilty to first-degree murder. He had been charged with second-degree murder after strangling his cellmate.

His childhood stolen by adult violence and drug use, Robertson started getting into serious trouble when he was 14. His rap sheet includes burglary, battery, aggravated assault and attempted murder.

By 2008 he was spending most of his time in solitary confinement, depressed and plotting to force the state to end his miserable existence.

So even without Robertson’s cooperation, his lawyer has something to work with.