Florida Supreme Court Corrects Another Death Penalty Error
Until fairly recently, the Florida Supreme Court seemed determined to maximize the damage caused by new pronouncements from the U.S. Supreme Court in capital cases. One such error was corrected in January. Another one was corrected last week.
In 1982, Probation Supervisor Bjorn Svenson was ambushed by one of his parolees, who emptied his weapon into Supervisor Svenson, reloaded, and shot him twice more. The murderer’s latest attempt to escape long-overdue justice was shot down by the Florida Supreme Court last Thursday.
The Previous Correction
As described in this post, the U.S. Supreme Court decided in Hurst v. Florida in 2016 that Florida’s death penalty system was flawed. The aggravating circumstance that makes a case eligible for consideration of the death penalty was not required to be found by the jury and proved beyond a reasonable doubt. On remand later that year, the Florida Supreme Court wrongly and needlessly decided that the requirement extended beyond the eligibility factor. It applied the rule also to the process of weighing aggravating against mitigating circumstances to determine whether the death-eligible defendant actually would be sentenced to death or whether he would be granted mercy and a life sentence.
Last year, Florida’s mandatory retirement law forced three justices to retire from the Florida Supreme Court. Their replacements were appointed by Governor Ron DeSantis.
Last January, as noted in the same post, the Florida Supreme Court overruled the Hurst-on-remand decision, cutting off Hurst reversals for all Florida inmates whose eligibility decision was clearly correct but who attacked the selection decision. The usual suspects let forth the usual howls of outrage. A month later, the U.S. Supreme Court made clear in McKinney v. Arizona that the limited view of the Hurst rule is correct and the earlier, expansive interpretation was wrong. See this post.
Hall v. Florida
Back in 2014, in Hall v. Florida , the U.S. Supreme Court disapproved of the way that Florida was using IQ test scores in deciding whether a murderer was intellectually disabled and therefore exempt from execution under Atkins v. Virginia (2002). After correctly noting that the state courts had failed to make any allowance for the Standard Error of Measurement (SEM), the high court itself failed to correctly apply that concept. Its opinion can be read to imply that every murderer who tests 75 or lower has met the “subaverage intellectual functioning” prong of the definition of intellectual disability. Nonsense. Applying the SEM, one who tests 75 on an IQ test with an SEM of 2.5 has less than a 3% chance of having a true IQ of 70 or below. From such a test result alone, it is impossible for him to meet a preponderance-of-evidence burden of proof that he does, in fact, have intellectual functioning two standard deviations below the population mean. Absent other, powerful evidence, a score of 75 proves the state’s case he is not intellectually disabled by the “clear and convincing evidence” standard. If the test was the gold-standard Wechsler Adult Intelligence Scale, with an SEM of only 2.1, a 75 would prove the state’s case beyond a reasonable doubt. See CJLF’s brief in Hall, pp. 13-16.
Prior Decision on Retroactivity of Hall
So what did the pre-2019 Florida Supreme Court do with the U.S. Supreme Court’s deeply flawed Hall precedent? As with Hurst, they applied it more broadly than they needed to.
The Florida Supreme Court affirmed the judgment in Harry Phillips’ second penalty trial in 1997, and the U.S. Supreme Court declined to take the case up in 1998. Phillips has postponed the execution of the judgment with a variety of collateral attacks ever since. What changes in the law made by the U.S. Supreme Court in the time since 1998 apply in new collateral attacks on that judgment?
Florida has its own retroactivity standard built on the foundation laid by the Warren Court in Linkletter v. Walker, 381 U.S. 618, 636 (1965) and Stovall v. Denno, 388 U.S. 293, 297 (1967). The U.S. Supreme Court abandoned the Linkletter–Stovall standard in Griffith v. Kentucky, 479 U.S. 314 (1986) and Teague v. Lane, 489 U.S. 288 (1989). Yet it survives in Florida.
Applying its retroactivity law, the Florida Supreme Court held in Walls v. State, 213 So. 3d 340 (2016) that Hall would apply retroactively to the cases on collateral review. Such application is warranted under Florida law if a precedent is a constitutional decision of the United States or Florida Supreme Court and it is of “fundamental significance,” meaning “when it either (1) places beyond the authority of the state the power to regulate certain conduct or to impose certain penalties or (2) when the rule is of sufficient magnitude to necessitate retroactive application under the retroactivity test of” Linkletter–Stovall.
Prong (1) of this test is simply the first exception to the Teague rule, making Florida law no different from federal. Prong (2) was, under the Warren Court’s application of the Linkletter–Stovall rule, much more expansive than the second Teague exception. The Teague exception is so narrow that it only exists in theory. The high court has never found a rule to qualify for it in the 31 years since Teague.
In Walls, the Florida Supreme Court held that prong (1) applied. It thought that Hall was a categorical exemption because it expanded the class of people eligible for the categorical exemption of Atkins. Therefore, every capital case in Florida with an Atkins issue was subject to a new collateral attack, even if the claim had previously been rejected under the law in effect at the time. In the case of Harry Phillips, even though the judgment had already been reviewed and upheld on direct appeal and a postconviction relief petition and habeas corpus and four successive postconviction petitions, he was entitled to an eighth review of his case. And this on an issue having nothing whatever to do with whether he is guilty of the crime.
On May 21, the Florida Supreme Court overruled Walls and affirmed the circuit court’s denial of relief to Phillips. The case was decided by a five-justice court, the two newest appointees not participating. The opinion is per curiam, meaning it is the opinion of the court without a designated author. Four justices join the opinion; Justice Labarga, a member of the Walls majority, dissents.
The majority refutes the keystone of the Walls decision–that Hall establishes a categorical exemption. Atkins established the exempt category as persons who are, using the nomenclature of the time, mentally retarded. Hall is a decision of procedure for determining who comes within the category.
But what about prong (2), described above? In theory, this is the Linkletter-Stovall test. But under Florida’s precedent in Witt v. State, 387 So. 2d 922 (1980), it is limited to “jurisprudential upheavals,” of which Gideon v. Wainwright, 372 U.S. 335 (1963) “is the prime example.” That sounds a lot more like Teague than it does like Linkletter-Stovall. Hall is an “evolutionary refinement” of the Atkins rule, and therefore it does not apply retroactively.
But we are not done. A ruling against the defendant on the state-law retroactivity issue does not end the matter, because the U.S. Supreme Court decided in Montgomery v. Louisiana that states cannot deny retroactive application of a new federal rule in their own collateral reviews when the Teague rule does require retroactivity. So this is a “heads I win; tails we take it over” application. Two analyses are required, and the defendant wins if he wins under either one.
Even so, the state law analysis has already resolved the primary issues under Teague. The rule is new, it is procedural rather than substantive, and it does not rise to Gideon‘s level of magnitude. Therefore, it does not apply to this old case.
What about precedent? As is common in criminal procedure cases, the overruling majority waves it off with the observation that there is no reliance interest.
For someone who has spent much of his career establishing and refining the Teague rule, reading about Linkletter-Stovall is like taking a ride in the Back to the Future DeLorean. Honestly, Florida Supreme Court, why do you keep it up? This case demonstrates that there is not enough difference in the two standards to make it worthwhile. Drop your idiosyncratic standard and adopt Griffith-Teague.
As for Phillips, once the U.S. Supreme Court turns down review of this opinion, he will likely be off for a new round of review in the federal courts. On the issue presented in this case, the Eleventh Circuit has already decided it against him, so there isn’t much mileage there. No doubt other issues will tie the case up for years to come, though.
For Florida, the cause of justice is looking up. The present Florida Supreme Court is not afraid to overrule clearly wrong decisions that needlessly impair justice in atrocious murder cases. It’s about time.