Tracking Florida Cases from the Blogosphere
The U.S. Supreme Court denied Jose Antonio Jimenez’s petitions for certiorari and applications for stay of execution without dissent or comment. SCOTUS has declined to intervene in the five active death warrant cases from Florida since August 2017, when executions resumed.
Jimenez was sentenced to death for the October 1992 murder of Phyllis Minas. Tonight, the high court rejected his last minute appeals, including his attack on the three-drug lethal injection protocol.
Today the Florida Supreme Court denied Jose Antonio Jimenez’s petitions challenging his death sentence. His execution by lethal injection will be tomorrow at 6 p.m., unless the U.S. Supreme Court intervenes.
Jimenez argued that a recent constitutional amendment required Florida’s new capital sentencing statutes to apply to him retroactively. Today the court rejected that argument with a unanimous order. The court also rejected his all-writs petition without dissent. Justice Pariente wrote separately in the all-writs case to clarify that the court’s denial was not a reflection on Jimenez’s counsel. And she went on to write a glowing review of Attorney Marty McClain’s work:
During my tenure on this Court, the State has executed fifty-seven individuals, and I have concurred in the overwhelming majority of all of these death warrant opinions or orders. Jimenez’s will be the fifty-eighth execution in the State of Florida since I joined the Court. During that time, no advocate has been more dedicated or zealous than Mr. McClain in representing capital defendants at all stages of their cases, including the very difficult time period after a death warrant is signed and execution scheduled. Mr. McClain never gives up, and for that he should be praised—not chastised.
. . .
This Court depends on attorneys like Marty McClain to advocate for death row defendants—never a popular cause but essential to ensuring that each execution withstands constitutional scrutiny.
That’s how Justice Pariente signed off on her last opinion in a death warrant case. And Justices Lewis and Quince, who retire alongside Pariente in January, joined that parting ‘thank you’ note to McClain.
But McClain’s work isn’t over. He already has a pending petition at SCOTUS (docket here) and an application for stay of execution. By morning, it’s likely that there will be additional SCOTUS petitions. We’ll be watching for any action on those petitions tomorrow.
SCOTUS has already denied Jimenez’s Hurst-related claims. His petition filed on Monday contains nine questions presented, which fall into two general categories: Brady/Giglio issues and a challenge to Florida’s three-drug lethal injection protocol.
Jimenez’s challenge to the lethal injection protocol is based largely on what occurred during Eric Branch’s execution back in February. According to witnesses, Branch yelled out “Murderers!” repeatedly and at the top of his lungs once the drugs began flowing, “thrashed on the gurney,” and fell “silent after a guttural groan.” This, Jimenez argues, shows the significant risk of pain that the three-drug cocktail causes, in violation of the Eighth Amendment: “The Eighth Amendment should preclude a lethal injection protocol that deprives the condemned of human dignity, as occurred in Eric Branch’s execution. Certiorari review is warranted.”
The State contends that Branch’s outbursts were not necessarily related to pain, but anger at the fact that he was being executed. Branch, the State points out, “made a brief statement, not of remorse for his college student victim, Susan Morris, but at Governor Scott and Attorney General Pam Bondi, placing responsibility for his execution on them, not the DOC personnel.” The State calls Jimenez’s argument about pain “speculative” and that “a hearing would not shed light on why” Branch “yelled out” during his execution.
We’ll see if SCOTUS finds any reason to break its streak of denying Florida death warrant petitions without comment or dissent since executions resumed in August 2017.
Yesterday the U.S. Supreme Court denied Jose Antonio Jimenez’s cert petition without dissent or comment. This continues the Supreme Court’s streak of denials without comment in Florida death warrant cases since Hurst. Jimenez’s petition challenged the Florida Supreme Court’s June 28 opinion. SCOTUS will likely have another look at Jimenez’s case before the end of next week.
An hour and three minutes before that denial, Jimenez filed a habeas petition in the Florida Supreme Court. This latest petition seeks relief based upon one of the recent amendments to the Florida Constitution that passed in last month’s general election. Voters would recognize it as “Amendment 11,” which was a bundled amendment of several provisions, including the one Jimenez cites in his petition.
In the bundle, Amendment 11 altered the so-called “savings clause” in Article X, section 9, of the Florida Constitution. Before the amendment, that provision stated:
Repeal of criminal statutes. –Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”
After the amendment, the clause states:
Repeal of criminal statutes. –Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.”
Jimenez argues that this change means the post-Hurst statutory changes (in 2016 and 2017) should apply to his case and give him a new sentencing hearing. He also makes arguments based upon the federal constitution in light of the amendment.
The State has until Friday at 5 p.m. to respond.
The State also has until noon on Wednesday to respond to Jimenez’s all writs petition. That petition was filed on the heals of the Florida Supreme Court’s November 21 order declaring that “all post warrant issues have been fully litigated” and that Jimenez needs to show good cause in any further state court filings.
Dockets are here (all writs) and here (habeas). Check the Florida Supreme Court’s website and Twitter feed (@flcourts) for updates and new filings. Jimenez’s execution is still set for December 13 at 6 p.m.
Jose Antonio Jimenez has been under a death warrant since July 18, 2018, for the October 1992 murder of Phyllis Minas. The U.S. Supreme Court discussed his September cert petition at Friday’s conference (docket here). His execution is set for December 13 at 6 p.m.
Jimenez’s case has a few moving parts. The Florida Supreme Court granted a stay of execution on August 10, and lifted it following their October 4 opinion rejecting his post-warrant claims regarding access to records, Florida’s three-drug lethal injection protocol, his 23 years on death row, and various Brady and Giglio violations. On November 15, Governor Rick Scott rescheduled Jimenez’s execution after receiving certification that the Florida Supreme Court lifted its stay of execution.
But the cert petition considered on Friday challenges the Florida Supreme Court’s June 28 opinion rejecting his claims under Hurst. As of this writing, the October 4 opinion is not before SCOTUS.
A unanimous jury recommended the death penalty, and Jimenez’s sentence was final in 1998. So Jimenez’s Hurst success would entail convincing SCOTUS that the Florida Supreme Court’s harmless error approach to unanimous death sentences is wrong and that Hurst should be extended retroactively to death sentences final before Ring v. Arizona. In other words, Jimenez appears to be in the exact situation that Patrick Hannon was in, and SCOTUS denied Hannon’s petition without dissent or comment from any Justice.
And after Justice Breyer’s recent comments respecting the denial of cert in Reynolds v. Florida, in which he observed Florida’s retroactive application of Hurst complied with SCOTUS’s opinion in Schriro v. Summerlin, there seems little reason to believe the outcome will be different for Jimenez on the Hurst issue.
Jimenez recognizes this. So his argument is different. He contends his post-conviction motion presented a different issue than the now-standard, Hurst-should-apply-to-everyone argument. Jimenez’s theory is that the Florida Legislature, in response to Hurst, did more than change sentencing procedures–they actually changed the elements of “capital murder” when amending the death penalty statutes. This, Jimenez argues, was a substantive change to the criminal law, which triggers the Due Process Clause of the Fourteenth Amendment and the cases concerning Due Process retroactivity. So the cases dealing with the retroactivity of Ring and Hurst are inapplicable to his case because those are Sixth Amendment cases, not Due Process cases.
The State disagrees, arguing that Hurst v. State and the post-Hurst statutes did not change the elements of first-degree murder or the penalty for the crime. In other words, Hurst and the 2017 legislation are procedural and the cases denying relief to pre-Ring sentences apply to Jimenez. Moreover, the State argues that these are really state law issues that SCOTUS shouldn’t concern itself with.
You wouldn’t know about the substance-versus-procedure debate by reading the Florida Supreme Court’s June 28 opinion. The court issued one of their standard Hitchcock orders finding that Jimenez didn’t show cause why his claim shouldn’t be denied under Hitchcock v. State, the case they use when denying Hurst relief to death sentences final before June 24, 2002, when SCOTUS decided Ring. But the court didn’t mention Jimenez’s Due Process attempt to bring his case out of the standard Hitchcock framework, holding that he failed to show cause why his case shouldn’t be decided on Hitchcock grounds. (You can read Jimenez’s response to the show cause order here, the State’s reply here, and Jimenez’s reply to the State here.)
At SCOTUS, Justices Sotomayor, Breyer, and Ginsburg have voted in the past to vacate and remand back to the Florida Supreme Court to address arguments raised below but not mentioned in the court’s opinion. In particular, Justice Sotomayor has criticized the Florida Supreme Court’s handling of Eighth Amendment arguments over the past year. But this is a completely different argument. We’ll find out whether any of the justices think the Florida Supreme Court should’ve specifically ruled on Jimenez’s Due Process argument or if they will continue their streak of denying relief without comment in Florida death warrant cases.
SCOTUS will release orders from Friday’s conference on Monday at 9:30 a.m. We’ll be watching.
The Florida Supreme Court Judicial Nominating Commission announced 11 nominees for Governor-Elect Ron DeSantis to choose from when filling the three vacancies from Justices Pariente, Lewis, and Quince’s mandatory retirement in January.
We know that one of the spots will be filled by a nominee residing in the geographical area of the Third DCA (i.e., Miami-Dade and Monroe Counties). This is because the Florida Constitution requires 5 of the 7 justices to represent each of the 5 appellate districts, with two at-large seats. The members staying on the court come from the First (Polston), Second (Canady), Fourth (Labarga), and Fifth (Lawson) Districts. Justice Lewis’s retirement opens the Third DCA seat.
Of the 59 applicants, the JNC selected 11, with 3 Third DCA nominees (see asterisks); the links take you to their supreme court applications:
So we will see at least a Justice Couriel, Justice Lagoa, or Justice Luck on the court early next year.
Whether or not it is the result of the recent quo warranto case determining that Governor Rick Scott didn’t have the authority to fill the vacancies, the list of 11 is noteworthy because it snubbed one of Scott’s preferences as stated in the letter convening the JNC:
The Governor strongly prefers submission of the maximum number of nominees (six) for each of the vacancies.”
That would be 18. It’s not clear whether DeSantis or his team had any input as to the number of nominees he wanted, but the JNC nominated 7 fewer candidates than Scott “strongly” preferred. Was this a defiant assertion of JNC independence following the quo warranto litigation?
One thing is certain: DeSantis has his work cut out for him in turning 11 nominees into 3 justices.
Today we’ll be a step closer to three new justices on the Florida Supreme Court. The Supreme Court Judicial Nominating Commission (JNC) will meet “for deliberations to select nominees for the Supreme Court vacancies created by the mandatory retirement of Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince.”
On Friday, November 16, the Florida Supreme Court denied the League of Women Voters’ Emergency Petition for Quo Warranto, Emergency Supplemental Petition for Quo Warranto, and for Constitutional Writ in four short paragraphs. That cleared the path to the JNC’s selection meeting today.
The vote was 4-3, with the outgoing justices dissenting. Justice Lawson wrote a concurring opinion, joined by Chief Justice Canady and Justice Labarga, explaining: “I conclude based upon a reasoned analysis of the relevant constitutional language, and our relevant precedent, that the Supreme Court JNC has not acted outside its authority by initiating its process to make nominations to fill the certain-to-occur and impending vacancies of my valued colleagues.”
Justices Lewis and Quince wrote dissenting opinions, both joined by Justice Pariente.
The order ended a yearlong litigation effort to determine which governor (outgoing or incoming) gets to fill the vacancies as the terms of three justices and Governor Rick Scott end in January 2019. A year ago the court didn’t rule on the issue because Gov. Scott had only talked about the process, but hadn’t acted. Once Scott set the JNC in motion, another suit was filed in September. Last month, the court unanimously granted a Writ of Quo Warranto against Governor Scott, deterimining that the new governor, not Governor Scott, has the constitutional authority to fill the three vacancies.
After the court ruled against Gov. Scott, the remaining issues concerned whether the JNC’s process, which began at Gov. Scott’s request, needed to cease until the new governor takes office and the supreme court seats are actually vacant. Oral argument was two days after Election Day.
With the polls showing Tallahassee Mayor Andrew Gillum leading former Congressman Ron DeSantis going into the election, the oral argument scheduled two days after the election looked to be a high-stakes showdown.
As to the JNC, the petitioners argued that the applicant pool was full of conservative candidates who applied thinking Scott would be picking the three new justices, while other folks didn’t apply because they thought there was no chance Scott would choose them. After the court’s unanimous ruling against Scott in October, it appeared the petitioners had the momentum going into the week of oral argument. Presumably Gillum’s supreme court preferences would be strikingly different than Scott’s. Would Gillum have to choose from the JNC’s recommendations based on an application deadline set to assist Scott in appointing new justices before his term expires? It looked very possible that the court would find a way to allow Gillum a new applicant pool or, at the very least, that Gillum would join the lawsuit. We’ll never know for sure how the argument session, and the court’s ultimate ruling, would’ve gone had Gillum won.
One thing we do know is that with DeSantis’s victory, the petitioners had to confront a new question in light of the election: who cares? The momentum and intrigue of the case seemingly evaporated right before oral argument.
The petitioners tried to salvage the case and convince the court that their arguments were constitutional, not political, in nature and that they were arguing for DeSantis’s right to choose from an applicant pool created with his own instructions and preferences in mind, not Scott’s. They did so in their briefing and at oral argument. Whether or not they were successful in persuading the court as to the political neutrality of their motives in the case, they did not convince a majority that the Florida Constitution required a JNC restart.
One could say there was an “eighth” justice in the case. Raoul Cantero, former member of the court, argued on behalf of the JNC. And he had authored one of the opinions cited throughout the briefs and discussed at oral argument. Then-Justice Cantero wrote that “nothing in the Florida Constitution prevents the relevant judicial nominating commission from beginning the process of nominating the retiring judge’s successor before the vacancy actually occurs–that is, before expiration of the judge or justice’s term.”
In the end, the current court majority agreed and also found no constitutional requirement that the JNC stop and restart its process once the new governor takes office and after the three supreme court seats become officially vacant.
That brings us back to today. We should find out this afternoon who makes the shortlist for the three seats. You can view the 59 applications here. We’ll tweet any news we see, @fla_ct_rev.
We wish everyone a safe and happy Thanksgiving. Thank you for reading!
The U.S. Supreme Court denied cert in Reynolds v. Florida and companion cases on Tuesday. Justices Breyer, Thomas, and Sotomayor wrote opinions in the case. Justice Sotomayor dissented from the denial of cert, continuing her written critique of the Florida Supreme Court’s harmless error approach. Justice Thomas wrote to “alleviate” some of Justice Breyer’s concerns about the administration of the death penalty in the cases under consideration, writing that, in light of the heinous nature of the crimes, he has “no such worry” about whether the death sentences reflected a “community-based judgment” about “proper retribution.”
But it was a short paragraph in Justice Breyer’s opinion explaining his vote to deny cert that raised our eyebrows, and shed some light on why the Court denied review in the four pre-execution cases since Hurst. We’ll first look at Justice Sotomayor’s dissent.
We’ve mentioned Justice Sotomayor’s ongoing correspondence with the Florida Supreme Court regarding that court’s harmless error analysis to Hurst error in light of Caldwell v. Mississippi. In her Tuesday dissent, she indicated that she will continue writing:
I respectfully dissent from the denial of certiorari, and I will continue to note my dissent in future cases raising the Caldwell question.”
Justice Sotomayor’s dissent took on the Florida Supreme Court’s reasoning in Reynolds v. State that Caldwell doesn’t apply to pre-Hurst juries because those juries weren’t misled about their role in sentencing:
But whether or not Caldwell itself makes the petitioners’ sentences unconstitutional, the reasoning in Caldwell surely informs the related question whether a purely advisory jury recommendation is sufficiently reliable for a court to treat it as legally dispositive for purposes of harmless-error review. Caldwell provides strong reasons to doubt that a jury would have reached the same decision had it been instructed that its role was not advisory.”
She concluded that the Florida Supreme Court’s “approach raises substantial Eighth Amendment concerns” and that she “would grant review to decide whether the Florida Supreme Court’s harmless-error approach is valid in light of Caldwell.”
Then she offers a glimpse into what the conference discussion might have been like: “This Court’s refusal to address petitioners’ challenges signals that it is unwilling to decide this issue.”
And that brings us to Justice Breyer’s opinion.
Justice Breyer mostly agreed with Justice Sotomayor’s Caldwell analysis but didn’t join her vote:
For the reasons set out in Justice Sotomayor’s dissent, I believe the Court should grant certiorari on that question in an appropriate case. That said, I would not grant certiorari on that question here. In many of these cases, the Florida Supreme Court did not fully consider that question, or the defendants may not have properly raised it. That may ultimately impede, or at least complicate, our review.
Reynolds, for instance, waived his right to present mitigation to the sentencing jury–and only 2 of 7 Florida Supreme Court justices joined the court’s opinion in full. Perhaps these were the complications in Reynolds’s case, though Breyer didn’t specifically say so. And while the Florida Supreme Court cites its decision in Reynolds for their rejection of the Caldwell attack on its harmless error approach, something about Reynolds didn’t seem quite right for Breyer’s vote.
But that’s not, in our view, the biggest takeaway from Justice Breyer’s opinion. We now have a clue as to how SCOTUS (or at least Justice Breyer) views the retroactive application of Hurst to sentences final after Ring v. Arizona. And that’s news.
Recall that the Florida Supreme Court has held that Hurst only applies retroactively to sentences that were final after SCOTUS released its opinion in Ring v. Arizona in June 2002. So if a 7-5 jury recommended the death penalty in a sentence that became final in 2001, Hurst will not require a new sentencing hearing, whereas an 11-1 jury recommendation in a sentence finalized in 2006 will get a new sentencing hearing.
This line in the sand struck some (including Justice Pariente, Justice Lewis, and since-retired Justice Perry) as arbitrary and perhaps an easy issue for SCOTUS intervention, especially in death warrant cases on the eve of execution. But then a few death warrant cases challenging the Ring cutoff came and went without comment from any of the justices. Does SCOTUS sanction the retroactive cutoff at Ring?
Justice Breyer indicates the answer might be yes, citing the retroactivity issue as a reason against granting cert in some of the companion cases with Reynolds:
Second, many of these cases raise the question whether the Constitution demands that Hurst be made retroactive to all cases on collateral review, not just to cases involving death sentences that became final after Ring. I believe the retroactivity analysis here is not significantly different from our analysis in Schriro v. Summerlin, 542 U. S. 348 (2004), where we held that Ring does not apply retroactively. Although I dissented in Schriro, I am bound by the majority’s holding in that case. I therefore do not dissent on that ground here.
So because Schriro held that Ring wasn’t retroactive, the Florida Supreme Court’s rule applying Hurst from Ring forward is fine, at least to Justice Breyer. This at least partially explains the denials in Asay, Lambrix, Hannon (though he had a unanimous jury), and Branch‘s death warrant cases. It also might explain the denial of cert in Hitchcock v. Florida. At the very least, it might explain Justice Breyer’s vote in those cases.
Notably, the Florida Supreme Court did not rely upon Schriro in creating the Ring cutoff, mentioning the case in passing in Asay (while opting to follow its Witt and Johnson cases), and not even discussing Schriro in Hitchcock, which is now the main case it uses to reject the challenge to the Hurst retroactivity rule.
Why? In Johnson, the Florida Supreme Court explained that Schriro contains the “narrow” Teague standard, while Witt makes it easier to apply a new criminal procedure rule retroactively. The Florida court held in Johnson that Ring wasn’t retroactive under Witt. If a rule is not retroactive after applying the broader Witt–Johnson standard, it will not be retroactive under Teague–Schriro.
In other words, Justice Breyer–who routinely questions “the constitutionality of the death penalty itself” (and did so again on Tuesday)–indicated that he does not believe Hurst should be applied retroactively in light of the stricter Schriro test, which he believes is settled law. That does not bode well for death row inmates whose sentences were final before Ring v. Arizona.
We’re waiting for the U.S. Supreme Court to either grant or deny cert in Reynolds v. Florida. On Thursday, the Florida Supreme Court again cited Reynolds as the case in which they definitively rejected the Caldwell v. Mississippi challenge to pre-Hurst death sentences.
Recall that Justice Sotomayor has questioned whether Reynolds actually addressed the issue because only two Florida Supreme Court justices fully concurred in the opinion. In Thursday’s opinion in Spencer v. State, five of the seven Florida Supreme Court justices concurred in the opinion.
Last week, SCOTUSblog highlighted Reynolds and six other Florida cases that the Court re-listed after the November 2nd conference. Each case involves the application of Caldwell to pre-Hurst capital sentencing.
Before Hurst, the jury’s role was to advise the judge on whether impose the death penalty. After Hurst, the jury chooses which sentence to impose, not the judge. The Florida Supreme Court now holds that it is harmless beyond a reasonable doubt that the judge imposed a death sentence when the jury’s recommendation was unanimous. But that raises a new question–how reliable is a jury’s unanimous recommendation when they were told they were only giving an advisory opinion–not rendering an actual, final sentence? This is the so-called Caldwell question for SCOTUS’s consideration in these cases.
On Friday, SCOTUS considered Reynolds for a second conference. We’ll see if they grant, deny, or re-list the case for another conference. The Court will release orders on Tuesday.
Perhaps you heard there was an election Tuesday. Florida voters approved each of the appellate judges on the ballot, including Florida Supreme Court Justice Alan Lawson. Voters also approved the amendment raising the mandatory judicial retirement age from 70 to 75.
But the 2018 election’s most consequential impact will be felt at the Florida Supreme Court. And sooner than you may think.
Tomorrow the Florida Supreme Court hears oral argument in League of Women Voters v. Scott. Recall that the court already ruled that the new governor, not Governor Rick Scott, will have the authority to fill the vacancies left by the mandatory retirement of Justices Barbara Pariente, Peggy Quince, and Fred Lewis. The focus tomorrow will be on when the Supreme Court Judicial Nominating Commission can certify its nominations.
With Governor-Elect Ron DeSantis taking office, one might be tempted to believe the issue of whether or not DeSantis fills the three supreme court vacancies with the applicants interviewed by Scott’s JNC is of little moment–perhaps even rendering the case moot. Not so, according to the League‘s Reply Brief submitted today:
While the governor’s office is not changing parties, these issues remain ripe and deserving of sober reflection and considered resolution. The governor-elect is entitled to make these appointments, and to whatever extent his preferences may diverge from Governor Scott, the process must reflect that the Commission is making nominations in its capacity as advisor to him, not Governor Scott.”
As far as we could tell, Governor-Elect DeSantis has not commented on whether he’d prefer the JNC to pause and restart its work when he takes office (which is the League’s position) or whether he would accept the JNC’s recommendations based upon the process Governor Scott began. DeSantis reportedly had general comments about what he is looking for in court appointees, but did not comment on the current applicant list before the JNC or whether he wanted to open the process up to more applicants.
Nevertheless, it doesn’t seem beyond the realm of possibilities that DeSantis and Scott will engage in some sort of collaborative process on the three appointments.
Tomorrow’s argument starts at 9 a.m. You can stream it live at this link.