Thursday, October 12, 2006


7. Retroactivity

50. Problems with the appellate review process show in other ways, some previously noted.

For example, the United States Supreme Court has explained that its decisions finding ineffective assistance in Rompilla v. Beard, Wiggins v.Smith, and Williams v. Taylor, were all dictated by its decision in Strickland and therefore each of those decisions, while issuing between 2000 and 2005, actually date back to Strickland, and reflect what the decision in Strickland the very day it was issued in 1984. Between 1984 and 2000, the Florida Supreme Court addressed ineffective assistance of counsel claims under Strickland in virtually every capital post conviction case that it heard.

It is clear from analyzing those opinions that the Florida Supreme Court did not read Strickland the way it was read and applied in Rompilla, Wiggins, and Taylor.

Yet, the Florida Supreme Court has refused to re-examine its decisions predicated upon its understanding of the meaning of Strickland which was at least arguably in error under Rompilla, Wiggins, or Williams.

Thus, individuals on Florida=s death row who have meritorious claims under any one of these three decisions and who presented those claims to the Florida Supreme Court before the issuance of these three opinions since the year 2000, will not get the benefit of those three decisions. In essence, the Florida Supreme Court has stripped those death row inmates of their Sixth Amendment rights as defined by the United States Supreme Court.

Since the very purpose of Strickland (and of Rompilla, and of Wiggins, and of Williams) was to insure that a constitutionally adequate adversarial testing occurred and that it produced a constitutionally reliable result, the Florida Supreme Court=s action defeats that purpose. It again injects arbitrariness into Florida=s death penalty system.

51. Another example of arbitrariness injected into the capital process by the Florida Supreme Court=s erratic action in applying decisions retroactively can be seen in the manner in which it has handled the fallout from its decision in Delgado v. State, 776 So. 2d 233 (Fla. 2000).

There, Mr. Delgado had been convicted of first degree murder on the basis that the homicide occurred in the course of a burglary in 1990. On appeal, the issue concerned whether Mr. Delgado, who had entered the victims= home with consent, committed a burglary by Aremaining in@ the residence.

The Florida Supreme Court concluded that the Aremaining in@ language only applied where the remaining in@ was done surreptitiously.

In reaching this conclusion, the Florida Supreme Court overturned a number of prior decisions, including Jimenez v. State, 703 So. 2d 437, 441 (Fla. 1997)(AJimenez argues that the burglary was not proven because there was no proof of forced entry, or that Minas refused entry, or that she demanded that he leave the apartment.@).

The alleged burglary in Mr. Jimenez=s case happened in 1992 and involving the same criminal statute at issue in Delgado.

Yet, the Florida Supreme Court refused to apply its construction of legislative intent as to the meaning of a criminal statute that it applied to a 1990 crime, to a criminal case occurring in 1992 involving the same statute. Subsequently, the Florida Supreme Court gave the benefit of the Delgado construction to a defendant who was charged with a 1980 burglary in which a homicide occurred. Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003), and give the benefit of the Delgado construction to a defendant who was charged with a 1994 burglary in which a homicide occurred. Raleigh v. State, 932 So. 2d 1054 (Fla. 2006).

52. Because of the manner in which the Florida Supreme Court used retroactivity rules to preclude consideration of meritorious claims, the ABA assessment team recommended in its report that the Florida state courts Ashould give full retroactive effect to United States Supreme Court decisions in all proceedings, including second and successive post-conviction proceedings, and should consider in such proceedings the decisions of federal appeals and district courts.@ ABA Report on Florida at 241.

Certainly, the manner in which the retroactivity rules operate currently has as at least as much to do with who gets executed and who does not, than the facts of the crime and the character of the defendant does.

The manner in which the Florida Supreme Court applies its retroactivity rules is arbitrary and violates Furman.

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