Questions left unanswered on Fla.'s death penalty future
Florida has been in a moratorium for a year after SCOTUS ruled the death penalty sentencing process unconstitutional. (AP Photo)
By Larry Hannan
The Florida Times-Union
JACKSONVILLE, Fla. — Rayne Perrywinkle has seen the death penalty trial for the man accused of abducting and having his way with her 8-year-old daughter delayed more times than she can count on one hand.
“It’s mind numbing,” Perrwinkle said, days after Donald James Smith’s trial was indefinitely delayed again last month in the strangulation of Cherish Perrywinkle. “I wish it was over and he was sitting on Death Row.”
But Smith, one of 30 people now facing a potential death sentence in St. Johns, Clay, Duval and Nassau counties, won’t go on trial in 2016, and 2017 may be a challenge.
Florida has been in a moratorium for the last year after the U.S. Supreme Court ruled the state’s death penalty sentencing process unconstitutional in January. The Legislature passed revised procedures, but the Florida Supreme Court ruled this month they were also unconstitutional.
“We’re in a state of flux right now,” said Melissa Nelson, the state attorney elect for the 4th Judicial Circuit that encompasses the three First Coast counties. “It make no sense to try cases now that could later be reversed on appeal.”
Even if judges wanted to begin the trials, they likely can’t.
A Clearwater judge attempted in October to have a death penalty trial, but days before jury selection the Florida Supreme Court ordered it indefinitely delayed. The ruling indicates that the highest court in Florida will not allow any death penalty trials to occur until new procedures are in place.
Attorney General Pam Bondi asked the Supreme Court last month to clarify its rulings, maintaining that trials already underway should move forward with unanimous jury recommendations. But defense lawyers criticized that, saying judges can’t just have trials occur when the Legislature hasn’t set procedures.
Nelson, who will take office in January, expressed hope the Legislature would pass another revised set of death penalty procedures in the spring during its regular session that would allow cases like Smith’s to proceed. But death penalty opponents argue that the punishment is dying and that these court rulings are a sign executions are on the way out.
Rob Smith, an attorney and research fellow at Harvard University who was involved in a recent study finding that Duval is among a handful of counties nationwide that most frequently send convicted criminals to Death Row, said the decisions show support for capital punishment is waning.
Forty-nine death sentences were imposed throughout the country in 2015. Statistics from the Death Penalty Information Center show a continuing drop over the last few decades from 315 in 1996 to 125 in 2006 and 73 in 2014.
The number of death sentences will probably drop below 49 in 2016 because so many communities choose not to seek death, Smith said. “Our society is moving on from this,” he said.
Public opinion on the death penalty is changing in a way that’s similar to how the public went from being opposed to supporting gay marriage, and Florida’s issues help change public opinion, Smith said.
He also said Florida lawmakers and prosecutors are to blame for the current situation because it’s been an open secret for years that the state’s death penalty procedures were problematic, but they weren’t adjusted and prosecutors fought efforts to change them.
Smith was backed up by University of Miami law professor Mary Anne Franks.
“The prosecutors who relentlessly pursued death sentences despite being repeatedly placed on notice that the state’s death penalty regime was constitutionally defective should be held accountable for the emotional and financial costs they have imposed on victims’ families and on taxpayers,” Franks said.
Franks said the country as a whole is reaching a turning point with executions, but the attachment to the death penalty is still strong in certain cases and in certain places.
“Polls tend to mask the fact that a large percentage of the population is very attached to the death penalty for certain cases — for example, when they involve child victims or police officers,” Franks said.
Based on Florida’s history, she doesn’t think it’s likely the death penalty will go away anytime soon unless the U.S. Supreme Court declares it completely unconstitutional, and it’s impossible to predict something like that.
The crux in Florida
The U.S. Supreme Court originally threw out Florida’s sentencing procedures because the final decision on death was made by a judge and not a jury. Those sentencing procedures said the jury’s role was advisory but in practice judges would sentence someone to death if a majority of the jury, seven out of 12, favored death.
That ruling didn’t specifically say juries must unanimously favor execution, and the Legislature responded by amending the procedures so that death was allowed if 10 of the 12 jurors recommended it.
The Florida Supreme Court threw that out, saying death sentences must be unanimously affirmed by the jury. Incoming Senate President Joe Negron said the state would amend the procedures again in 2017 to require a unanimous recommendation of death before anyone can be put on Death Row.
Possible legal challenges could still delay future trials and executions.
Of 31 states with a death penalty, Florida is one of just three — joining Alabama and Delaware — that did not require unanimous jury recommendations. Delaware’s death penalty also is in moratorium due to the Florida rulings.
Jacksonville State Attorney Senior Managing Director Bernie de la Rionda has put dozens of people on Death Row and said he believes the death penalty will continue to be used by prosecutors.
“It’s important to remember that the death penalty wasn’t declared unconstitutional in Florida,” de la Rionda said. “It’s just the sentencing procedures that need to be fixed.”
While polling has shown more opposition to the death penalty, he said the majority of people still support it. De la Rionda suspects support in Northeast Florida is even stronger for the death penalty than it is nationally.
In the eight years Angela Corey has been state attorney, the Jacksonville area has sent significantly more people to Death Row than any other prosecutor in the state.
De la Rionda said Jacksonville also had a high rate of sending people to Death Row under former chief prosecutors Harry Shorstein and Ed Austin.
“Jurors here are much more conservative and willing to embrace the death penalty,” de la Rionda said.
The new sentencing procedures should not change when a prosecutor seeks death, but it will make it more challenging to pick a jury, he said.
“You’ll be required to question the jurors more extensively,” de la Rionda said, adding that before a single juror who’s reluctant to impose death was not a big deal, but now it will be important to make sure that every juror is willing to consider the death penalty.
He expects the penalty phase to become longer and more detailed.
Lysa Telzer had to wait 14 months between when her mother-in-law, Renie Telzer-Bain, 82, was killed to when the man accused of her murder, Cecil King, went to trial, was convicted and sentenced to death.
“In hindsight, waiting 14 months was a breeze,” said Telzer, who now works as a victims advocate for the Justice Coalition. “I’m not living through what some of these victims’ families now are going through.”
Telzer now counsels victims’ families, including many who are waiting for death penalty trials to begin. Part of her job is explaining how the court system works and why the death penalty is in moratorium.
“You can’t really blame anybody but the Supreme Court for this,” Telzer said. “You can’t blame the judge and you can’t blame the prosecutors.”
The uncertainty can be very difficult for some who want the experience over with, but there’s not much anyone can do right now, Telzer said.
Two parents, two views
Darlene Farah has generated attention as the mother of a victim who doesn’t want her daughter’s killer to go to Death Row. James Xavier Rhodes is charged with killing Shelby Farah while robbing the Metro PCS store on North Main Street in Jacksonville on July 20, 2013.
Farah said the delays demonstrate why she doesn’t want Rhodes to go to Death Row and prefers prosecutors take a deal that puts him in prison for life. She doesn’t want to spend the rest of her life dealing with endless appeals that have become part of the death penalty system.
“For the good of me and my children I would like some closure on this,” Farah said, referring to her two surviving children. “It takes so much out of me every time I have to come into this courthouse.”
Perrywinkle doesn’t agree. She wants Donald Smith dead and expressed surprise when told many people are trending against the death penalty. “That’s terrifying, that’s staggering,” she said.
Life has not been easy for Perrywinkle since her daughter’s death. The state took away her other children and she was criticized by many for allowing her daughter to be snatched away after Smith offered to buy the family food and clothing.
Perrywinkle said she’s trying to get better, and she will feel a sense of peace if Smith lands on Death Row.
“I’ve seen him so many times now, and I’m used to seeing him from across the room [in court],” Perrywinkle said. “But when I take the stand and look at him, it’s going to be very different.”