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Top court looks at Fla. death row

A condemned Florida inmate renews the death penalty debate, as his argument against lethal injection will be heard today by the U.S. Supreme Court.

By CHRIS TISCH
Published April 26, 2006


Once again, the death penalty debate is rippling across the nation.

Once again, Florida is in the middle of it.

In the past several months, executions have been halted here and in California after inmates objected to lethal injection, calling it cruel.

Other states, including Texas and Indiana, have continued using needles to put inmates to death, although the same concerns have been raised there.

This morning, the U.S. Supreme Court is scheduled to begin hearing arguments in a Florida death penalty case that could signal major change in how states use lethal injection. Some observers say the court's eventual ruling could eliminate an avenue of appeal, or even portend the demise of the death penalty.

Clarence Hill, condemned for the 1982 shooting death of Pensacola police Officer Stephen Taylor, will seek permission from the court to pursue a civil rights lawsuit that will challenge lethal injection as unconstitutionally cruel.

Hill, 48, cites a recent study that claims the state's use of a three-chemical cocktail will cause him great pain while leaving him paralyzed and unable to protest before he is killed.

A win by Hill could temporarily halt executions in Florida and other states while the lethal injection issue is sorted out.

A loss could lead to Hill's almost immediate execution, along with that of another Florida death row inmate, Arthur Rutherford, whose execution was stayed after Hill's.

The recent stir over lethal injection comes six years after Florida gave death row inmates the option of choosing the drugs over the electric chair, which also faced cruelty challenges after inmates bled and burned during executions.

"Since lethal injection is in play, I think that has sparked a national debate again," said Hill's attorney, D. Todd Doss, who will argue in front of the nation's highest court. "I think it might have caused some renewed interest because of how controversial the death penalty is."

Lethal injection, which is used by all but one of the nation's 38 death penalty states, is not itself on trial. The issue before the court narrowly concerns whether death row inmates can challenge the method of execution in a civil rights claim.

The 11th Circuit Court of Appeals in Atlanta has said Hill cannot because doing so would simply repeat claims he has made before. But federal courts in other areas of the country have allowed the use of the civil rights lawsuit to challenge lethal injection.

Some death penalty attorneys say the high court will provide guidance to lower courts whose decisions on the issue have diverged.

"The 11th Circuit is in the minority position," Doss said. "We think it was accepted (by the Supreme Court) because of the split among the circuits."

Doss said he will argue he can bring the civil rights claim because he is not contesting Hill's conviction or sentence, but instead challenging the state's method of execution.

Such a civil rights complaint was first used in Florida in 1983 when attorneys for South Florida murderer Robert Sullivan challenged the electric chair as unconstitutionally cruel.

Despite work by a defense team led by attorney Michael Mello, a judge and a three-judge appellate panel denied the claim, and Sullivan was executed.

"I later learned that all of that bought Bob Sullivan about 10 extra minutes," Mello said. "It was one of those searing experiences in my life as a lawyer that I'll sure never forget.

"To win more time is to win," Mello said.

Carolyn Snurkowski, the assistant deputy attorney general who will argue for the state of Florida today, said Hill already has exhausted all his appeals. She also will argue that Hill filed his civil rights claim too late.

Some experts question whether justices will want to address the lethal injection issue more broadly.

"They probably wouldn't be interested in the procedural issue if they weren't troubled by the merits issue" surrounding lethal injection, said Mello, now a Vermont Law School professor.

Justices could ask questions during oral arguments that would indicate if they are leaning toward addressing more than just the technical, procedural issue.

"I think the oral argument could be very interesting. I am hopeful, but not optimistic, that some of the justices could tip their hand," said professor Douglas Berman of the Moritz College of Law at Ohio State University.

"I think it's quite possible that the court either as a whole or individual members will want to keep it as confined as possible," Berman said. "But there are others who might say . . . "We should address it very broadly.' "

Berman said the court has given mixed signals on the issue.

For one, Hill's Jan. 24 execution was stayed, in dramatic form, as he lay on a gurney with a needle in his arm at Florida State Prison in Starke. But other inmates in other states who raised the same issue as Hill received no such relief and were executed.

"They pulled Mr. Hill off the gurney and all of a sudden people say something must be up: "Why would they pull him off the gurney?' " Berman said. "But why would they do that for an arcane appellate issue? So is it because there is a problem with lethal injection? Nobody knows quite what to make of that.

"And other states, Texas notably, have plowed ahead full steam," he said. "And when they (the inmates) ask the court, "Hey, pull me off the gurney, too,' the court has said "Go away.' "

If the U.S. Supreme Court denies Hill, lethal injection as a means of execution would be safeguarded for the time being.

"I expect lethal injection will still be the primary method after all the smoke clears," said Kent S. Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in California. "This isn't about genuine concern for the method of execution or the pain felt by murderers. It's really about gamesmanship and frustrating the ability of the state to carry out its judgment."

Not all agree with that assessment.

"A lawyer would be fired or disbarred if he didn't bring a lethal injection challenge," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, which has criticized application of the punishment.

"That's what you have to do when you are bound to zealously defend your client's life. This is what you're supposed to do."

If Hill prevails, his execution date still could be set, though his attorney likely will argue that it should be delayed.

What happens next could largely depend on what the Supreme Court says in its opinion and if Hill can get another court to stall his execution.

It could takes months or even years for Doss to gather witnesses, take depositions and schedule a hearing on the lethal injection issue, experts said.

Delays have been frustrating to some family members of Taylor's, who was shot and killed by Hill during a robbery attempt.

"It needs to be done and it needs to be over with," said Linda Knouse, the victim's sister.

But a win by Hill also could lead to a Supreme Court ruling on the constitutionality of lethal injection itself, some death penalty opponents say.

"I think the Supreme Court will eventually declare the death penalty unconstitutional," Mello said. "If lethal injection is cruel and unusual punishment, then I think the death penalty ceases to exist."

But Mello said he believes that won't happen until public opinion dramatically shifts.

"I don't think they're going to do it until the rest of the country has rejected it first. And to my amazement we may be moving in that direction," Mello said.

Times researchers Angie Holan, Caryn Baird and the Associated Press contributed to this report. Chris Tisch can be reached at 727-892-2359.

DEATH PENALTY METHODS

1924: After more that 100 years, public hangings are abolished by the Florida Legislature.

Oct. 7, 1924: The first prisoner is put to death by electrocution at Florida State Prison.

1976: The U.S. Supreme Court reinstates capital punishment.

Dec. 2, 1982: The nation's first execution by lethal injection takes place in Texas.

Feb. 24, 2000: Florida's first lethal injection execution takes place.

Source: Times wires