Florida justices Harding and Wells say they had no substantial input into new limits on death penalty appeals. Rep. Victor Crist says otherwise.
By JO BECKER
© St. Petersburg Times, published March 18, 2000
TALLAHASSEE -- The sponsor of a new law limiting death penalty appeals says that two state Supreme Court justices privately consulted with the Legislature during the crafting of the measure, a contention that raises questions about whether the justices should recuse themselves now that the law has been challenged in their court.
Chief Justice Major Harding and Justice Charles Wells were in "direct contact" with House Speaker John Thrasher, according to Rep. Victor Crist, a Republican from Temple Terrace who sponsored the legislation to speed up executions. Crist said the justices made last-minute suggestions that changed the substance of the bill passed in a special session in January.
Both justices deny they had any say in shaping the substance of the new law.
Crist is angry because he thinks the Legislature did its best to heed the court's advice in writing the law, only to have the two justices join the rest of the court last month in ruling to put the law on hold after attorneys for death row inmates argued that it is unconstitutional. The court -- with Harding and Wells sitting in judgment -- heard arguments on the case this week.
"We consulted with Wells, we consulted with Harding, and we did it the way we were told to do it," said Crist. "At the last minute, per the speaker's request, based on recommendations from the court, we made additional changes. It was based on what the justices were telling the speaker."
Those changes, Crist said after checking with his aide Don Rubottom, included making an exception to the absolute limit on appeals for newly discovered evidence of innocence. Another change split the legislation into two separate bills: one to limit appeals and another making lethal injection the state's primary execution method. Crist had publicly vowed not to do either up until the day he made the changes.
In the interests of remaining fair and impartial, judges are not supposed to comment, publicly or in private, on the substance of matters that are either before them or certain to come before them. Even before the death penalty law passed, it was clear that it would wind up before the state Supreme Court.
But justices can have conversations with legislative leaders about administrative issues: how a law might affect the caseload or budget of the courts. These days, those conversations take place in a difficult climate. Many Republican lawmakers view the court as too liberal and are pushing to diminish the court's power.
In this case, Wells denied having any input into the death penalty appeals legislation. Wells said he has spoken to Thrasher only on unrelated matters: "Not to talk about that bill, not that I remember."
Harding initially said he had "one conversation" with Thrasher to discuss the law's fiscal impact on the courts. "I spoke to the speaker one time about considering that judicial resources would be required," Harding said.
Though a draft of the proposed new law was forwarded to the court, Harding said he "never discussed any of the merits of the legislation." He said he saw no reason to disclose the conversation to lawyers who attended this week's oral arguments.
Thrasher remembers things differently, saying he met with Harding once and had "one or two telephone conversations with him." He said he thought the conversations were entirely appropriate.
"We sent some information to them (the justices) about what we were thinking about, more in the line of concepts than anything else," Thrasher said. "I wouldn't let them draft the bill, but they were interested in discussing the concepts about court procedures that were included in the bill. That's what they were interested in talking about."
A letter from Thrasher indicates that Harding came by his office Dec. 17, just 19 days before the special session. In the letter, Thrasher thanked Harding for coming to see him to "present" a bill on the appeals issue.
The bill effectively split the difference between what a court-appointed commission was recommending to speed up death penalty appeals and what the Legislature was contemplating. "I do appreciate your suggestions and input into our deliberations," Thrasher wrote. "As we both progress toward adopting a set of reform proposals, I am grateful for your input into our work product."
After reading a fax of Thrasher's letter, Harding said in a subsequent interview Friday that the bill was put on his desk the day he was scheduled to see Thrasher. He said he brought it to the meeting and "gave it to him for information."
"How he took it I can't control -- I know what the letter says," Harding said. "The court took no position. . . . It would have been totally inappropriate for me to have made recommendations."
The proposal Harding gave Thrasher was the brain-child of Philip Padovano, a member of the commission the court set up in March 1999 to study the issue of how to reduce unnecessary delays in carrying out the death penalty. The commission's recommendations came out in September.
But as it became clear that the legislature wanted to go in a different direction, Padovano said that he came up with a new proposal. In December, he presented it to the state Supreme Court. Another judge, Charles Miner of the 1st District Court of Appeal, liked it so much he decided to turn it into a bill. Miner said he forwarded the bill to Harding as a courtesy. Both judges said Harding gave them no indication of his feelings about the proposal.
In the end, the Legislature did not adopt Padovano's proposal. Still, Crist was astounded when he found out that Wells and Harding had denied having input into the law the Legislature finally did pass. "Maybe they have short memories," he said.
Crist said he had a personal conversation with Harding last year about a similar death penalty appeals bill that died in the 1999 session. "He made some of his concerns known, and of course, he made some recommendations," Crist said.
Crist said Harding's recommendations had nothing to do with administrative matters: "It was about the substance of what were trying to do."
Harding said he recalled meeting Crist when Thrasher brought him to his office last year.
"He probably did call me during the course of the session, but I don't have any recollection of what we discussed," Harding said, adding, "I just don't have any recollection of passing on the validity of any legislation. Here again, it may be the interpretation."
Crist also said he made it known last summer that he would refile the legislation. He said staff from the governor's office, the Senate, the House, and the Judiciary held several meetings "to hammer out the differences."
John Hogenmuller, a lawyer who monitors criminal justice legislation for the court, said he attended meetings, including one held just before the special session. But he said he did not attempt to give the Legislature an indication of the court's feelings.
"I was basically there for the court's information on what they were doing," Hogenmuller said. "As far as providing input or language, no, I wouldn't do that."
But Crist said as a result of those earlier meetings, he made changes to the bill. He then made the additional, last-minute changes as the special session was to begin.
"I got called into the speaker's office and I was told, after conversations with the Supreme Court, it is strongly recommended that we separate (all the proposals into two bills) and that we also provide for a proof of innocence exception," Crist said. "I was told, this is what the courts wanted."
In the end, it may not matter who is correct.
"Even the fact that there is a factual issue here, if I were one of the attorneys representing the death row inmates, I would file a motion to disqualify Harding and/or Wells because their participation is now under a cloud," said Martin McClain, a New York-based lawyer who has represented death row inmates in Florida.
McClain also said that Harding's decision to give Padovano's proposal to Thrasher could lead to some confusion.
"Accepting him (Harding) at his word, I think the chief justice handing you something could easi-ly be misconstrued," McClain said. "I think he would really need to make it clear that it was for infor-mational purposes only and not an endorsement."
But some felt otherwise.
"If you're the chief justice, and someone in the judiciary hands you a proposal that affects the court," said former Supreme Court Justice Arthur England, "I don't think there would be anything wrong with the chief justice hand-ing it over to a committee or the speaker."