A Times Editorial

Rush to death

The example of an inmate who has been on death row for about 20 years shows not how defendants and their attorneys slow down justice but how chronically flawed the state's death-penalty system is in the first place.

© St. Petersburg Times, published February 10, 2000

Gov. Jeb Bush and the Republican leadership in the state Legislature must be desperate for examples to justify their efforts to speed up the pace of executions in Florida.

As part of their campaign to blame defendants and their lawyers for the long delays in carrying out executions, Bush and his legislative allies dredged up the case of Linroy Bottoson, who has languished on death row for about 20 years. But his wait has had little to do with the dallying tactics of defense lawyers. On the contrary, Bottoson's delay illustrates some of the chronic failures that have plagued Florida's death-penalty system for decades: the barriers to adequate representation, the complications of mental illness and the injustices of a flawed prosecution.

Bottoson's crime was ugly. He was convicted of kidnapping a 74-year-old woman, holding her captive for three days, stabbing her 16 times and then running over her with his car. But Bottoson's case has never been clear-cut, and even with the delays, the questions surrounding his sentence left the Florida Supreme Court sharply divided as recently as 1996.

For one thing, Bottoson was represented in his original 1981 trial by a young, inexperienced lawyer who knew little about presenting a capital defense. At the time, the state mandated fee caps that discouraged seasoned lawyers from defending inmates. Under the flat $2,500 cap, Bottoson's trial lawyer was paid the equivalent of $13 an hour.

Bottoson got what the government paid for. Despite convincing evidence of Bottoson's long history of mental illness that could have persuaded a jury and judge against a death sentence, the young lawyer failed to raise the issue at trial. The lawyer explained to the judge that he could not afford to call witnesses, noting that "it all boils down to the fact that the county, the state (and) the Legislature (have) placed restrictions on my ability to conduct a meaningful defense on behalf of Mr. Bottoson."

Bottoson's direct appeal was denied three years after his sentence.

Facing his next level of appeals, Bottoson was at a disadvantage. The state had not yet created the current system of state-funded post-conviction lawyers for death-row inmates, and Bottoson did not have a lawyer. At the urging of the American Bar Association, Orlando lawyer James Russ, a sole practitioner, agreed to take Bottoson's case for free. He filed the next appeal in accordance with the deadlines. Then, according to Russ, nothing happened. The trial judge remained silent for nearly 10 years until he finally agreed to hear Bottoson's claims that his trial lawyer was inadequate, that a nationally respected dog handler called as a key witness by the state was later revealed to be a fraud and that Bottoson's long history of paranoid schizophrenia should disqualify him from execution.

In 1996, a divided Florida Supreme Court rejected the appeal. A strong dissent written by Justice Gerald Kogan and signed by two others took the state of Florida to task for its notorious record of denying death-row inmates adequate counsel. Kogan said Bottoson's inexperienced trial lawyer and his pathetic fee resulted in a "clear and unmistakable deficiency in performance."

A hopelessly backlogged federal court system is now considering Bottoson's current appeal, which was filed in 1997.

Linroy Bottoson is just one case. But there are other examples of how prosecutorial misconduct, judicial bias or other problems unrelated to the defense have led to delays in the appeals process. It is true that skilled defense lawyers in some cases have employed clever obstructions and delaying tactics, but that doesn't happen as often as the politicians would have you believe.

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