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Justices refuse to step down from death law review


© St. Petersburg Times, published March 31, 2000

TALLAHASSEE -- Two state Supreme Court justices weighing Florida's new death penalty appeals law refused to disqualify themselves from the case Thursday, issuing terse statements that did not explain the nature of their conversations with legislators who crafted the measure.

Attorneys for death row inmates argued that Chief Justice Major Harding and Justice Charles Wells created "a cloud of impropriety" by talking to lawmakers who were drafting the new law, then neglecting to disclose those conversations when the law was challenged in their court.

They filed motions to disqualify the justices last week and asked that an independent judge, called a special master, be appointed to further investigate the matter.

But the motions all were denied.

"I have carefully considered the motions and find they are legally insufficient to warrant my recusal," wrote Harding.

Wells cited several previous cases and the judicial code of conduct in declining to recuse himself.

Attorneys for death row inmates could appeal the matter in federal courts. "I don't think this is over," said assistant public defender Chet Kaufman.

Meanwhile, the two justices' office calendars, released Thursday at the request of the St. Petersburg Times, show that both Wells and Shaw had scheduled several meetings with legislators leading up to March 14, the day the court held oral arguments on the new law.

On Feb. 21, both Harding and Wells were to have met with Republican House Speaker John Thrasher and Rep. Dudley Goodlette, who was later picked by Thrasher to present oral arguments in favor of the new law. On March 10, both justices scheduled a meeting with Republican Sen. Locke Burt, the Senate architect of the new death penalty law. On March 13, both justices apparently met with Rep. Ken Pruitt, the House Republican who oversees the state's entire budget, including the court's.

Wells scheduled a meeting with Thrasher and Sen. John Laurent, who chairs the committee that writes the court's budget, earlier this month. Harding also scheduled a March 7 meeting with Sen. Skip Campbell, a Fort Lauderdale Democrat who co-sponsored the new death penalty law.

The court's spokesman declined to comment when asked about the nature of the meetings.

The justices' contacts with lawmakers in the days leading up to this January's special session were first disclosed in the St. Petersburg Times on March 18.

Rep. Victor Crist, a Tampa Palms Republican who sponsored the new death penalty law, said at that time that Wells and Harding were in direct contact with Thrasher, making last-minute suggestions that changed the substance of the legislation. Crist later said he was mistaken. But in a letter from Thrasher, the House speaker, thanked Harding for his input into the new law. The letter indicates Harding came by Thrasher's office 19 days before the special session began to present a draft bill on death penalty appeals.

Both Harding and Wells have denied having any input into the substance of the legislation. In the interests of remaining impartial, judges are not supposed to comment on the substance of matters that are before them or certain to come before them.

The judicial code also requires judges to disclose any communications about a matter that is pending before them and requires disqualification from "any proceeding in which the judge's impartiality might reasonable be questioned."

The court last month blasted a lower court judge, saying that judges must disclose information, even if they know they will not have to recuse themselves.

Allegations do not necessarily have to be true in order for a judge to recuse him or herself: Judges, the court wrote in last month's opinion, "must remain cognizant of the fact that even in situations where they personally believe that their judgment would not be colored, public perception may differ."

Neither Harding nor Wells, both of whom support capital punishment, addressed those legal issues in their one-page orders.

Those charged with carrying out the death penalty in Florida supported the justices' decision. "I didn't see any reason why they should recuse themselves," said Attorney General Bob Butterworth.

But others disagreed.

"At the very least, there's an appearance of impropriety -- a reasonable person could have reason to believe that Harding and Wells have prejudged the case," said Steven Gey, a constitutional law professor at Florida State University.

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