Pasco: Death penalty trial for 80-year-old man makes little sense

Death penalty trial for 80-year-old man makes little sense

By editorial)

Berry Kessler used to carry the title of oldest man on Florida's death row. The Pinellas-Pasco State Attorney's Office wants to restore the dubious distinction to the 80-year-old man.

Kessler sits in a federal prison, serving a life sentence without parole for his role in the 1991 contract killing of his business partner, Hudson cabinetmaker John Deroo. But having an octogenarian locked up for life isn't good enough for prosecutors. They intend to seek the death penalty for Kessler when he is retried in Pasco County on the state charge of first-degree murder.

It is a waste of time and money. A successful conviction and death sentence triggers automatic appeals that take, on average, 11 years to exhaust. Even if Kessler were to outlive his appeals, the likelihood that some future Florida governor will sign a death warrant for a man in his 90s is remote. The oldest Florida inmate to be executed was 72, and that was 40 years ago.

So, why bother?

"Sometimes you've just got to do the right thing," Pinellas-Pasco State Attorney Bernie McCabe told Times staff writer Cary Davis.

McCabe's thinking isn't disagreeable, just his definition of "right thing." Making sure a convicted killer is never released is appropriate punishment. Asking for the chance to stick a lethal injection into a sickly old man is not.

A federal jury convicted Kessler in 1994. A Pasco jury did likewise in 1996 and voted 9-3 for the death sentence. Circuit Judge William Webb followed the jurors' recommendation, but the Florida Supreme Court overturned the conviction and sentence in 1999, saying Webb should have questioned jurors individually about pretrial publicity. A new trial date has not been set, but it is expected to be held next year.

This exercise is futile. It might be more understandable if Kessler's federal conviction were in danger of being overturned. It is not. He has lost his federal appeals to date and even Kessler's attorney said he has little chance at succeeding.

Which makes the push for a death sentence even more curious. There is no guarantee federal authorities will release Kessler to Florida's death row. That was the case after the first trial. Kessler remained in federal prison even with a Florida death sentence hanging over him.

Kessler, according to testimony during his first trial, arranged the murder in an insurance fraud scheme. Deroo was shot six times in the face. The trigger person has not been caught.

Kessler wants the trial, according to his attorney, for another chance to clear his name. He is entitled to due process. But even the victim's family questions the wisdom of pushing the death penalty considering Kessler's advanced age.

They are right. It is not an advocacy for compassion. Just common sense.