Yesterday the Florida Supreme Court rejected Eric Scott Branch’s death warrant petitions. His execution’s set for next Thursday, February 22, at 6 pm. Now we shift our attention to the Supreme Court of the United States.
Branch was convicted of the 1993 rape and murder of Susan Morris, a college student attending the University of West Florida in Pensacola. The attack occurred on campus when Morris was returning to her car after class. The jury recommended the death penalty with a 10-2 vote and the sentence was final in 1997. That would violate Hurst v. Florida and Hurst II, but not under the Florida Supreme Court’s retroactive application of Hurst, which only extends to sentences final since June 24, 2002.
The FSC rejected Branch’s Hurst claim with a Hitchcock order a few weeks ago. Following SCOTUS’s denial of certiorari in Hitchcock’s case, the Florida Supreme Court pumped out over 70 orders (80, as of February 2) denying relief to death row inmates whose sentences were final before June 24, 2002, when SCOTUS decided Ring v. Arizona. The FSC defines “final” as when SCOTUS denies cert from a defendant’s direct appellate proceedings. Branch asked the Florida Supreme Court to stay his execution while his cert petition is pending from that order, but the court denied that motion.
Branch’s cert petition from the Hitchcock order is here and the docket is here. Now that SCOTUS has joined e-filing nation, the case documents are readily available. The SCOTUS application for stay from that case is docketed here.
That’s the case to watch. We’ll see if SCOTUS takes on Florida’s retroactive application of Hurst that draws the line at June 24, 2002. So far, they have not done so in any case, including the last three death warrant cases. Like Branch, two of those three, Mark James Asay and Cary Michael Lambrix, didn’t have a unanimous jury recommend the death penalty. SCOTUS denied review in both instances without comment or dissent. If they do intervene and rule the FSC’s retroactivity cases unconstitutional, it would mean the undoing of over 80 cases released this year, and perhaps raise the question of why they didn’t intervene earlier, especially in the recent death warrant cases.
But as Justice Lewis recently pointed out, both the FSC and SCOTUS rejected (or didn’t opine on) the argument that Ring v. Arizona applied to Florida’s death penalty system for almost 14 years, the time between Ring and Hurst v. Florida. And there were several death warrant cases that raised the issue during those 14 years. So the retroactive cases may be unconstitutional (just not yet) or they may not be. We won’t know for sure till SCOTUS answers one way or the other, or until all of the 80+ pre-Ring sentences (including those that were not issued a recent Hitchcock order) get carried out without interference.
Branch, for one, doesn’t have 14 years for the retroactivity question. We’ll see if SCOTUS has an opinion on the matter in the next six days.