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Justices leery of appeal changes

State Supreme Court justices have plenty of questions for lawmakers, who were defending a new law to limit death row appeals.

By JO BECKER

© St. Petersburg Times, published March 15, 2000


TALLAHASSEE -- Amid escalating tension between Republican state lawmakers and the judicial branch, three House members appeared before the state Supreme Court on Tuesday to defend a law they passed in January shortening the time condemned murderers spend on death row.

The law would force the Supreme Court to adopt new rules limiting the number of appeals an inmate can file in state court and drastically shortening the time inmates have to file them. But after death row lawyers argued it was unconstitutional, justices put the law on hold. And during Tuesday's oral arguments, they grilled lawmakers and lawyers for the state.

"Do you find it the public will that an innocent person would be executed?" Justice Leander Shaw asked Rep. Johnnie Byrd, R-Plant City. "The concern we're having is that the way the (law) is written . . . that could happen."

Byrd was joined by two other lawmakers: Rep. Tom Feeney, an Oviedo Republican expected to become the next House speaker, and Rep. Dudley Goodlette, a Naples Republican.

Both Feeney and Goodlette have staked out positions against the court lately. Feeney last week charged that the court substitutes "personal politics and whims for the work of elected officials." Goodlette has been asked by House Speaker John Thrasher to file a proposal allowing Gov. Jeb Bush to appoint two additional justices to the seven-member court.

Under the new law, once an inmate has reached the cap on state court appeals, justices would have to ignore newly discovered evidence of innocence unless the inmate could also prove that his constitutional rights had been violated. That, said Chief Justice Major Harding, is "the concern we have." Justice Barbara Pariente agreed, arguing that "seems to me to be the wrong way to attack delay."

Richard Martell, who defends death sentences for the Attorney General's Office, said the Florida law was modeled after a similar federal law. Inmates would also be able to seek clemency from the governor.

One of arguments raised by opponents of the new death penalty appeals law is that the Legislature has no right to tell an independent branch of government -- the courts -- how to conduct administrative business.

While he acknowledged that constitutionally mandated separation of powers, Byrd argued that the Legislature does have a right to set overall policy.

Noting that the Legislature had cast a two-thirds vote to throw out the court's old death penalty appeals rules, Byrd said, "I think at some point there must be deference to the will of the people."

"Even the will of the people has to give way to constitutional restraints," replied Justice Harry Anstead.

The new law requires that within 180 days of filing a direct appeal alleging that the trial court made an error, an inmate must file any "collateral" appeals: those that raise such arguments as the initial lawyers bungled the case, the state improperly withheld evidence, or there is newly discovered evidence of innocence. The collateral appeals must be "fully pled," meaning that they must contain any arguments that are going to be raised. The courts cannot extend the deadline for any reason.

Lawyers for death row inmates cited other states that have tried -- and abandoned -- such "dual track" systems.

Justices also had questions.

"What about a situation where some of the public records were not provided or disclosed and there is already a fully pled petition?" asked Anstead.

"What if (Hurricane) Andrew came and hit a lawyer's office who is preparing a fully pled motion?" asked Harding. "What if an attorney died and a new attorney had to be appointed?"

But the state argued that creating exceptions would defeat the purpose of the law. Harding also said the Legislature would have to come up with increased funding for the system to work.

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