tht4as 0. hali in the supreme court of florida · tht4as 0. hali in the supreme court of florida...
TRANSCRIPT
THT4AS 0. HALIIN THE SUPREME COURT OF FLORIDA
CASE NO. SC13-738 NAY -8 AM 8: 25
CLEad, SUPREME COUR T
ELMER LEON CARROLL, By
Appellant,
v.
STATE OF FLORIDA,
Appellee .
ON APPEAL FROM THE CIRCUIT COURTOF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
MICHAEL P. REITERFlorida Bar No. 03202344 Mulligan CourtOcala, FL 34472Telephone (813) 391-5025E-Mail: mreiter378comcast.netCOUNSEL FOR APPELLANT
JAMES J. DOWDYFLORIDA BAR NO. 793360Telephone (407) 538-9997E-Mail: [email protected] CO-COUNSEL FOR APPELLANT
PRELIMINARY STATEMENT
This proceeding involves the appeal of the circuit court's
order summarily denying Mr. Carroll's successive Rule 3.851
motion. The following symbols will be used to designate
references to the record in this appeal:
"R." - record on direct appeal;
"PC-R." - postconviction record on appeal;
"PC-T." - transcript of postconviction evidentiaryhearing;
"PC-R2." - record on appeal following the summary denial ofMr. Carroll's successive postconviction motion.
REQUEST FOR ORAL ARGUMENT
Mr. Carroll is presently under a death warrant with an
execution scheduled for May 29, 2013. This Court has not
hesitated to allow oral argument in other warrant cases in a
similar procedural posture. A full opportunity to air the issues
through oral argument would be more than appropriate in this
case, given the seriousness of the claims involved, as well as
Mr. Carroll's pending execution date. Mr. Carroll, through
counsel, urges that the Court permit oral argument.
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ......................................... i
REQUEST FOR ORAL ARGUMENT ..................................... i
TABLE OF CONTENTS ............................................ ii
TABLE OF AUTHORITIES ......................................... iv
STATEMENT OF THE CASE AND FACTS ............................... 1
SUMMARY OF THE ARGUMENT ....................................... 2
STANDARD OF REVIEW ............................................ 3
ARGUMENT I
MR. CARROLL IS EXEMPT FROM EXECUTION UNDER THEEIGHTH AMENDMENT BECAUSE HE SUFFERS FROM SUCH SEVEREMENTAL ILLNESS THAT DEATH CAN NEVER BE AN APPROPRIATEPUNISHMENT................................................ 4
ARGUMENT II
THE ARBITRARY AND STANDARDLESS POWER GIVEN TO FLORIDA'SGOVERNOR TO SIGN DEATH WARRANTS RENDERS THE FLORIDACAPITAL SENTENCING SCHEME UNCONSTITUTIONAL UNDER THEEIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION............................................. 13
ARGUMENT III
BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. CARROLLHAS SPENT ON DEATH ROW, ADDING HIS EXECUTION TO THATPUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENTIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TOTHE UNITED STATES CONSTITUTION, AND BINDING NORMS OFINTERNATIONAL LAW........................................ 20
ARGUMENT IV
THE CLEMENCY PROCESS IN MR. CARROLL'S CASE WAS APPLIED INAN ARBITRARY AND CAPRICIOUS MANNER IN VIOLATION OF THEEIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION AND CORRESPONDING PROVISIONS OF THE FLORIDACONSTITUTION............................................. 29
CONCLUSION ................................................... 33
11
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CERTIFICATION OF FONT ........................................ 34
111
TABLE OF AUTHORITIES
CASES PAGE
Allen v. Hickman407 F.Supp.2d 1098 (N.D. Cal. 2005)...................... 33
Atkins v. Virginia536 U.S. 304 (2002)...................... 1, 4, 6, 8, 11, 13
Carroll v. McNeil130 S.Ct. 500 (2009)..................................... 29
Carroll v. Secretary, Dep't of Corrs.574 F.3d 1354 (11" Cir. 2009)............................ 2
Carroll v. State636 So. 2d 1316 (Fla. 1994)............................... 1
Carroll v. State815 So. 2d 601 (2002)..................................... 1
Carroll v. StateCase No. SC04-192 (Fla. May 12, 2005)................. 2, 29
Catholic Commission for Justice and Peace in Zimbabwe v.Attorney General
No. S.C. 73/93 (Zimbabwe 1993) [reported in 14 HumanRights L. J. 323 (1993)]................................. 26
City of Cleburne, Texas, et al.v. Cleburne LivingCenter, Inc., et al.
473 U.S. 432, 439 (1985)................................. 12
Cleveland Bd. Of Ed. V. Loudermill470 U.S. 532 (1985)...................................... 33
Coleman v. Balkom451 U.S. 949 (1981)...................................... 20
Corcoran v. State774 N.E. 2d 495 (Ind. 2002).............................. 8
Duvall v. Keating162 F.3d 1058 (10* Cir. 1998)........................... 32
Elledge v. Florida119 S. Ct. 366 (1998).................................... 22
Enmund v. Florida458 U.S. 782 (1982)....................................... 6
lv
Espinosa v. Florida505 U.S. 1079 (1992)..................................... 17
Farmer v. Brennan511 U.S. 825 (1994)...................................... 20
Ford v. Wainwright477 U.S. 399, 424 (1986)................................. 33
Furman v. Georgia408 U.S. 238 (1972)...................... 13, 14, 15, 18, 19
Gaskin v. State737 So. 2d 509 (Fla. 1999)................................ 3
Greqq v. Georgia428 U.S. 153 (1976)................................... 6, 20
Harbison v. Bell129 S.Ct. 1481 (2009).................................... 30
Harmelin v. Michigan501 U.S. 957 (1991)...................................... 21
Hudson v. Palmer468 U.S. 517 (1984)...................................... 20
In re Medley134 U.S. 160 (1890)...................................... 21
Knight v. Florida528 U.S. 990 (1999).................................. 22, 23
Lackey v. Texas514 U.S. 1045 (1995)............................. 21, 22, 28
Lawrence v. State969 So. 2d 294 (Fla. 2007)............................... 29
Missouri v. Holland252 U.S. 416 (1920)...................................... 25
Mullane v. Central Hanover Bank & Trust Co.339 U.S. 306 (1950)...................................... 33
Ohio Adult Parole Authority, et al. v. Woodard523 U.S. 272 (1998).................................. 31, 32
Peede v. State748 So. 2d 253 (Fla. 1999)................................ 4
v
Plyler v. Doe457 U.S. 202 (1982)...................................... 12
Pratt v. Attorney General of Jamaica[1994] 2 A. C. 1,4 All E. R. 769, 773(P. C. 1993) (en banc)........................... 22, 23, 25
Riley v. Attorney Gen. of Jamaica3 All E.R. 469 (P.C. 1983)............................... 22
Roper v. Simmons543 U.S. 551 (2005)....................... 4, 6, 7, 8, 9, 13
Sher Singh v. State of Puniab2 SCR 582 (India 1983) .................................. 26
Siderman de Blake v. Republic of Argentina965 F.2d 699 (9th Cir. 1992)............................. 25
Soering v. United Kingdom11 Eur. H.R. Rep. 439 (1989)......................... 24, 25
State v. Glatzmayer789 So. 2d 297 (Fla. 2001)................................ 3
State v. Ketterer855 N.E. 2d 48 (Ohio 2006)................................ 8
State v. Scott748 N.E. 2d 11 (Ohio 2001)................................ 8
Stephens v. State748 So. 2d 1028 (Fla. 1999)............................... 3
The Paquete Habana175 U.S. 677 (1900)...................................... 25
Thompson v. McNeil129 S.Ct. 1299 (2009).................................... 23
Thompson v. Oklahoma487 U.S. 815 (1988)....................................... 9
Trop v. Dulles356 U.S. 86, 100 (1958) .................................. 4
Vatheeswarren v. State of Tamil Nadu2 S.C.R. 348 (India, 1983)............................... 26
Weems v. United States217 U.S. 349 (1910)....................................... 5
v1
Workman v. Summers136 F.Supp.2d 896 (M.D. Tenn. 2001)...................... 32
Young v. Hayes218 F.3d 850 (8° Cir. 2000)............................ 32
TREATISES, ARTICLES, RULES and GUIDELINES
Annual Report, Fla. Parole Commission2007-2008................................................ 32
Bluestone and McGahee, Reaction to Extreme Stress:Impending Death By Execution
119 Amer. J. Psychiatry 393 (1962) ...................... 27
A. Camus, Reflections on the Guillotine in Resistance,Rebellion and Death, P. 205 (1966)............................ 27
Duffy and Hirshberg, Eighty-Eight Men and Two Women(1962) 54................................................ 27
Gallomar and Partman, Inmate Responses to LengthyDeath Row Confinement
129 Amer. J. Psychiatry 167 (1972)....................... 27
G. Gottlieb, Testing the Death Penalty34 S. Cal. L. Rev. 268 (1961) ........................... 27
Holland, Death Row Conditions: Progression TowardsConstitutional Protections
19 Akron L. Rev. 293 (1985).............................. 27
Hussain and Tozman, Psychiatry on Death Row39 J. Clinical Psychiatry 183 (1979) .................... 27
Johnson, Under Sentence of Death: The Psychology ofDeath Row Confinement
5 Law and Psychology Review 141 (1979) .................. 27
Lambrix, The Isolation of Death Row in Facing theDeath Penalty
198 (Radelet, ed. 1989).................................. 26
Mello, Facino Death Alone37 Amer. L. Rev. 513 (1988).............................. 26
Millemann, Capital Postconviction Prisoners' Right toCounsel
vll
48 MD. L. Rev. 455, 499-500 (1989)....................... 26
Note, Mental Suffering Under Sentence of Death: A Crueland Unusual Punishment
57 Iowa L. Rev. 814, 830 (1972).......................... 27
Rules of Executive Clemency............................... 30, 31
Schabas, Execution Delayed, Execution Denied5 Crim. L. Forum 180 (1994) ............................. 26
Peter Shapiro, Adding Teeth to the United StatesRatification of the Covenant on Civil and PoliticalRights
42 DePaul L. Rev. 1209, 1216 (Summer 1993)............... 25
Stafer, Symposium on Death Penalty Issues: Volunteeringfor Execution
74 J. Crim. L. 860 (1983)................................ 27
David P. Stewart, United States Ratification of theCovenant on Civil and Political Rights: The Significanceof the Reservations, Understandings, and Declarations
42 DePaul L. Rev. 1183 (Summer 1993) .................... 25
West, Psychiatric Reflections on the Death Penalty45 Amer. J. Orthopsychiatry 689 (1975) .................. 27
Wood, Competency for Execution: Problems in Law andPsychiatry
14 Fla. St. U. L. Rev. 35 (1986)......................... 26
vlll
STATEMENT OF THE CASE AND FACTS
On November 26, 1990, Mr. Carroll was indicted for one count
of first degree felony murder and one count of sexual battery on
a person less than twelve years of age (R. 996-97). On March 21,
1992, the jury convicted Mr. Carroll as charged (JR. 1281).
Mr. Carroll's penalty phase was conducted on April 13,
1992. Following instructions and deliberations, the jury
recommended that a sentence of death be imposed for the first
degree felony murder (]R. 1277-80; 883-964). The trial court
sentenced Mr. Carroll to death, finding three aggravating
circumstances and one nonstatutory mitigating circumstance (]R.
965-99). Mr. Carroll appealed his convictions and sentence of
death, which were affirmed. Carroll v. State, 636 So. 2d 1316
(Fla. 1994).
Mr. Carroll sought postconviction relief by filing a
Florida Rule of Criminal Procedure 3.850 motion on February 1,
1996 (PC-R. 450-571). An amended motion was filed on January 31,
1997 (PC-R. 696-832). On October 20, 1998, subsequent to an
evidentiary hearing, the circuit court entered its order denying
Mr. Carroll relief on all claims (PC-R. 1157-85). Mr. Carroll
appealed the denial of postconviction relief and also filed a
state habeas petition in this Court, which thereafter denied all
relief. Carroll v. State, 815 So. 2d 601 (2002).
On April 22, 2003, Mr. Carroll filed a successive
postconviction motion in the circuit court based on a claim of
mental retardation pursuant to Atkins v. Virginia, 536 U.S. 304
1
(2002). This motion was summarily denied by the circuit court on
January 12, 2004 (PC-R2. 126-135). Thereafter, on May 12, 2005,
this Court affirmed the circuit court's denial of relief. Carroll
v. State, Case No. SC04-192 (Fla. May 12, 2005).
On June 8, 2005, Mr. Carroll filed a federal habeas corpus
petition in the Middle District of Florida. On June 20, 2008,
the district court issued an order denying Mr. Carroll's
petition. On July 17, 2009, subsequent to briefing and oral
argument, the Eleventh Circuit issued an opinion affirming the
denial of relief. Carroll v. Secretary, Dep't of Corrs., 574 F.3d
1354 (ll" Cir. 2009), cert. denied, 130 S.Ct. 500 (2009).
On April 17, 2013, the Governor signed a warrant scheduling
Mr. Carroll's execution. Mr. Carroll filed a Rule 3.851
postconviction motion on April 23, 2012. The circuit court
denied relief on April 30, 2013. This appeal follows.
SUMMARY OF THE ARGUMENT
1. Mr. Carroll is exempt from execution under the Eighth
Amendment to the United States Constitution because he suffers
from such severe mental illness that death can never be an
appropriate punishment. Mr. Carroll's severe mental illness
places him within the class of defendants, like those who were
under the age of eighteen at the time of the crime and those with
mental retardation, who are categorically excluded from being
eligible for the death penalty.
2. The arbitrary and standardless power given to Florida's
Governor to sign death warrants renders the Florida capital
2
sentencing scheme unconstitutional under the Eighth and
Fourteenth Amendments to the United States Constitution.
3. Because of the inordinate length of time that Mr.
Carroll has spent on death row, adding his execution to that
punishment would constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments to the United
States Constitution, as well as binding norms of international
law.
4. The clemency process and the manner in which it was
determined that Mr. Carroll should receive a death warrant on
April 17, 2013, was arbitrary and capricious and in violation of
the Eighth and Fourteenth Amendments to the United States
Constitution and corresponding provlslons of the Florida
Constitution.
STANDARD OF REVIEW
The claims presented in this appeal are constitutional
issues involving mixed questions of law and fact and are reviewed
de novo, giving deference only to the trial court's factfindings.
Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999); State v.
Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001).
Additionally, the lower court denied an evidentiary hearing,
and therefore the facts presented in this appeal must be taken as
true. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999); Gaskin v.
State, 737 So. 2d 509, 516 (Fla. 1999).
3
ARGUMENT I
MR. CARROLL IS EXEMPT FROM EXECUTION UNDER THE EIGHTHAMENDMENT BECAUSE HE SUFFERS FROM SUCH SEVERE MENTALILLNESS THAT DEATH CAN NEVER BE AN APPROPRIATEPUNISHMENT .
Mr. Carroll is exempt from execution under the Eighth
Amendment to the United States Constitution because he suffers
from such severe mental illness that death can never be an
appropriate punishment.1 Mr. Carroll's severe mental illness
places him within the class of defendants, like those who were
under the age of eighteen at the time of the crime and those with
mental retardation, who are categorically excluded from being
eligible for the death penalty. Cf. Roper v. Simmons, 543 U.S.
551 (2005) (holding that the death penalty is unconstitutional
for defendants under 18 at the time of the crime); Atkins v.
Virginia, 536 U.S. 304 (2002) (holding that the death penalty is
unconstitutional for mentally retarded defendants).
The United States Supreme Court has long cautioned that the
Eighth Amendment's prohibition against cruel and unusual
punishment is not simply a fixed ban on certain punishments, but
rather depends on evolving standards of decency for its
substantive application. Trop v. Dulles, 356 U.S. 86, 100 (1958)
(noting that "the [Eighth] Amendment must draw its meaning from
1Mr. Carroll recognizes, as the circuit court noted in itsorder, that this Court has previously rejected similar claims asprocedurally barred and meritless (PC-R2. 358). Mr. Carrollrespectfully request that this Court revisit this issue andconsider whether his severe mental illness constitutes a bar tohis execution.
4
the evolving standards of decency that mark the progress of a
maturing society."); Weems v. United States, 217 U.S. 349, 368
(1910) (recognizing that the words of the Eighth Amendment are
not precise, and that their scope is not static.). The 2006
American Bar Association's Resolution 122A, urging states to
exempt from the death penalty those defendants with severe mental
illness at the time of their crimes as described in the
resolution, evinces an evolution in standards of decency which
must be considered in a proper Eighth Amendment analysis.2
Mr. Carroll has suffered continuously from severe mental
illness since before the time of the crime for which he was
convicted and sentenced to death. He has been diagnosed with
organic brain damage spanning both hemispheres which impairs his
reasoning (PC-T. 233, 247, 262), psychotic illness (PC-T. 238-39,
248-49, 316-17, 392, R. 759, R. 1066-72), paranoid schizophrenia
(R. 1046), and has contributing factors of Fetal Alcohol Syndrome
(PC-T. 245, 392).3 He falls within the class of persons who are
2It bears noting that prior to the United States SupremeCourt's decisions holding that mentally retarded defendants anddefendants under the age of eighteen at the time of the crimeare categorically excluded from eligibility for the deathpenalty, the ABA passed resolutions urging the exemption of bothclasses of defendants from the death penalty. See American BarAssociation, Report with Recommendations No. 107 (adoptedFebruary 1997); American Bar Association, Recommendation (adoptedFebruary 1989); American Bar Association, Recommendation (adoptedAugust 1983).
3At various times, Mr. Carroll has been medicated withNavane, Loxitane, Stelazine, Pamelor, Visteral, Asendin,Cogenton, and Donegral (PC-T. 325-27).
5
so much less morally culpable and deterrable than the "average
murderer" as to be categorically excluded from being eligible for
the death penalty, no matter how heinous the crime. Cf. Simmons,
supra; Atkins, supra. Given his severe mental illness, Mr.
Carroll is constitutionally protected from execution because the
death penalty is an unconstitutionally excessive punishment for
the same reasons delineated in Atkins and Simmons. In Greqq v.
Georgia, 428 U.S. 153, 183 (1976), the United States Supreme
Court identified retribution and deterrence of capital crimes by
prospective offenders as the social purposes served by the death
penalty. In Atkins, the Supreme Court stated that "[u]nless the
imposition of the death penalty on a mentally retarded person
measurably contributes to one or both of these goals, it 'is
nothing more than the purposeless and needless imposition of pain
and suffering,' and hence an unconstitutional punishment." 526
U.S. at 320, quoting Enmund v. Florida, 458 U.S. 782, 798 (1982).
The Atkins Court ultimately found that neither justification for
the death penalty was served by its imposition on mentally
retarded individuals.
As to the first justification, retribution, the court
concluded that the legislative trend against imposition of the
death penalty on mentally retarded offenders "provides powerful
evidence that today our society views mentally retarded offenders
as categorically less culpable than the average criminal." Id. at
316. The Atkins Court opined that "[i]f the culpability of the
average murderer is insufficient to justify the most extreme
6
sanction available to the State, the lesser culpability of the
mentally retarded offender surely does not merit that form of
retribution." 526 U.S. at 319. The Court explained some reasons
for the lesser culpability of mentally retarded offenders:
Mentally retarded persons frequently know thedifference between right and wrong and are competent tostand trial. Because of their impairments, however, bydefinition they have diminished capacities tounderstand and process information, to communicate, toabstract from mistakes and learn from experience, toengage in logical reasoning, to control impulses, andto understand the reactions of others. ... [T]here isabundant evidence that they often act on impulse ratherthan pursuant to a premeditated plan, and that in groupsettings they are followers rather than leaders. Theirdeficiencies do not warrant an exemption from criminalsanctions, but they do diminish their personalculpability.
Id. at 318. Similarly, in Simmons, the Supreme Court listed
several reasons for juveniles' diminished culpability:
Three general differences between juveniles under18 and adults demonstrate that juvenile offenderscannot with reliability be classified among the worstoffenders. First, ... "[a] lack of maturity and anunderdeveloped sense of responsibility are found inyouth more often than in adults and are moreunderstandable among the young. These qualities oftenresult in impetuous and illconsidered actions anddecisions." It has been noted that "adolescents areoverrepresented statistically in virtually everycategory of reckless behavior."
* * *The second area of difference is that juveniles aremore vulnerable or susceptible to negative influencesand outside pressures, including peer pressure.
* * *The third broad difference is that the character of ajuvenile is not as well formed as that of an adult. Thepersonality traits of juveniles are more transitory, lessfixed.
Simmons, 543 U.S. at 569-570 (internal citations omitted).
7
The reasoning in Atkins and Simmons applies with equal force
to severely mentally ill offenders such as Mr. Carroll, as some
judges across the county have begun to recognize.4 Mr. Carroll's
severe mental illness and neurological impairments cause him to
suffer from the very same deficits in reasoning, judgment, and
control of impulses that lessen his culpability and render the
penological justification of retribution ineffective against him.
As to the deterrence justification for capital punishment,
the Atkins Court also found that as a result of the limitations
4In a concurring opinion in State v. Ketterer, 855 N.E. 2d48 (Ohio 2006), Justice Stratton addressed the ABA resolution andnoted that "[t]here seems to be little distinction betweenexecuting offenders with mental retardation and offenders withsevere mental illness, as they share many of the samecharacteristics." Id. at ¶ 245. He concurred in the court'sjudgment upholding the death sentence of a severely mentally illoffender, however, because "while [he] personally believe[s] thatthe time has come for our society to add persons with severemental illness to the category of those excluded from applicationof the death penalty, [he] believe[s] that the line should bedrawn by the General Assembly, not by a court." Id. at ¶ 247. Seealso Corcoran v. State, 774 N.E. 2d 495, 502 (Ind. 2002)(Rucker, J., dissenting) ("I respectfully dissent because I donot believe a sentence of death is appropriate for a personsuffering a severe mental illness. Recently the Supreme Courtheld that the executions of mentally retarded criminals are"cruel and unusual punishments" prohibited by the EighthAmendment of the United States Constitution. There has been noargument in this case that Corcoran is mentally retarded.However, the underlying rationale for prohibiting executions ofthe mentally retarded is just as compelling for prohibitingexecutions of the seriously mentally ill, namely evolvingstandards of decency.") (internal citations omitted); State v.Scott, 748 N.E. 2d 11 (Ohio 2001) (Pfeifer, J., dissenting) ("Asa society, we have always treated those with mental illnessdifferently from those without. In the interest of human dignity,we must continue to do so.... I believe that executing a convictwith severe mental illness is a cruel and unusual punishment.").
8
on the ability of a person with mental retardation to reason and
control himself, the death penalty would have no deterrent effect
on his actions. Id. at 2251. Specifically, the Court found that
a mentally retarded individual's "diminished ability to
understand and process information, to learn from experience, to
engage in logical reasoning, or to control impulses" makes it
less likely that he will conform his conduct to avoid the
possibility of execution. Id. Similarly, in Simmons, the Court
noted that "the same characteristics that render juveniles less
culpable than adults suggest as well that juveniles will be less
susceptible to deterrence." 543 U.S. at 571. In particular, the
Court opined, "[t]he likelihood that the teenage offender has
made the kind of costbenefit analysis that attaches any weight to
the possibility of execution is so remote as to be virtually
nonexistent." Id. at 572, quoting Thompson v. Oklahoma, 487 U.S.
815, 837 (1988).
Likewise, the justification of deterrence is not served by
executing severely mentally ill individuals, as severe mental
illness can impair an individual's ability to control impulses or
understand long-term consequences. At his evidentiary hearing,
Mr. Carroll presented evidence of his severe mental illness. As
Dr. Toomer testified, Mr. Carroll's diagnostic history varied
along a continuum:
At various times . . . [Mr. Carroll] has manifestedovert psychotic behavior characterized by responding tointernal stimuli, auditory responses, hallucinations.At other times he manifested what we refer to assymptomatology indicative of severe personality
9
disturbance where there has been a disturbance affect,or feeling; impaired emotional reactions and responses,poor impulse control, and the like.
(PC-T. 358.)
Within forty-eight hours of Mr. Carroll's arrest,
Gainesville psychologist Elizabeth McMahon traveled to the Orange
County Correctional Facility to evaluate him at the request of
the public defender then assigned to the case. For three hours
Dr. McMahon attempted to conduct a psychological evaluation of
Mr. Carroll, but found that he was paranoid and untestable (PC-T.
315). As she recounted at the evidentiary hearing, "[Mr.
Carroll] would say from time to time, 'The voices don't want me
to answer you'; or 'The voices are telling me you should leave,'
or . . . 'They'll hurt me if I talk to you.'" (PC-T. 316).
Mr. Carroll believed that the jail poisoned his food; that he
sometimes sees messages on television directed only at him, that
people follow him and talk about him on the streets, that he
communicates directly with God, and that he has the power to read
minds and to heal people (:R. 1045).5
During Mr. Carroll's postconviction evidentiary hearing,
experts testified to the lifelong duration of his mental
illnesses (PC-T. 232, 239, 247, 328-29, 412). In fact, the
origins of Mr. Carroll's mental problems likely extend back to
the womb. Evidence introduced at the hearing established that
SDr. McMahon determined that Mr. Carroll was psychotic andindicated that he would have to be medicated before anexamination could be conducted (PC-T. 316-17, 320).
10
Mr. Carroll's mother drank heavily during her pregnancy,
indicating the likelihood of Fetal Alcohol Syndrome (PC-T. 245).
In addition, the mental illness of numerous family members points
to a genetic disorder. These problems were compounded by brutal
physical abuse and sexual abuse suffered by Mr. Carroll as a
child, as well as by chronic alcoholism and drug use. As Dr.
Crown testified, "This [mental disorder] represents a cluster of
problems that have multiple causative factors, beginning with
problems in utero, moving to neonatal/perinatal problems, [and]
the effects of trauma and the effects of substance abuse,
particularly before the adolescent years." (PC-T. 247).
Capital punishment's twin goals of retribution and
deterrence would not be served by executing Mr. Carroll. The
extensive and compelling evidence of Mr. Carroll's severe mental
illness presented at his evidentiary hearing demonstrates that
his significant impairments 1n reason1ng, judgment, and
understanding of consequences puts him in the same class as
mentally retarded and juvenile offenders in terms of diminished
culpability.
Additionally, mental illness, like mental retardation and
youth, can impair a defendant's ability to consult with and
assist counsel at trial. Cfm Atkins, 536 U.S. at 321 ("Mentally
retarded defendants may be less able to give meaningful
assistance to their counsel..."). Such was certainly the case with
Mr. Carroll, as is demonstrated by his trial attorney's testimony
at the postconviction evidentiary hearing. The first time trial
11
counsel saw his future client, he "thought Elmer Carroll was
insane. I happened to be in court when he made his first court
appearance with the public defender. I had looked at him then,
and I thought this guy was nuts." (PC-T. 135). When trial
counsel took over the case, he found Mr. Carroll to be "a nice,
courteous person that couldn't give me any help..." (PC-T. 136).
"...I thought Elmer was really suffering from some type of mental
problems. I thought he was insane. And no, he was not able to
assist me. Even though some psychiatrists said he was able to
assist me, he didn't give me any assistance." (PC-T.151)
(emphasis added). "I felt like I was talking to an empty suit."
(PC-T. 151).
Because severely mentally ill defendants, mentally retarded
defendants, and juvenile defendants are similarly situated with
respect to the goals served by capital punishment, and because
there is no rational basis for distinguishing severely mentally
ill defendants from mentally retarded and juvenile defendants,
executing Mr. Carroll would not comport with equal protection
under the United States Constitution. See e.g., City of Cleburne,
Texas, et al.v. Cleburne Living Center, Inc., et al., 473 U.S.
432, 439 (1985), citing to Plyler v. Doe, 457 U.S. 202, 216
(1982) ("The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall 'deny to any person within its
jurisdiction the equal protection of the laws,' which is
essentially a direction that all persons similarly situated
should be treated alike."). Mr. Carroll's severe mental illness
12
and neurological impairments render him ineligible for the death
penalty under the Eighth Amendment and the Supreme Court's
reasoning in Atkins and Simmons. Relief is warranted.
ARGUMENT II
THE ARBITRARY AND STANDARDLESS POWER GIVEN TO FLORIDA' SGOVERNOR TO SIGN DEATH WARRANTS RENDERS THE FLORIDACAPITAL SENTENCING SCHEME UNCONSTITUTIONAL UNDER THEEIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATESCONSTITUTION.
Mr. Carroll's petition for a writ of certiorari was
denied by the United States Supreme Court on November 2, 2009.
Over three years later, on April 17, 2013, Mr. Carroll's death
warrant was signed. Mr. Carroll submits that the sheer
randomness with which the Governor goes about making these life-
and-death decisions is unconstitutional.
Over thirty years ago, the United States Supreme Court
announced that under the Eighth Amendment, the death penalty must
be imposed fairly, and with reasonable consistency, or not at
all. Furman v. Georgia, 408 U.S. 238, 310 (1972) (per curiam). At
issue in Furman were three death sentences: two from Georgia and
one from Texas. Relying upon statistical analysis of the number
of death sentences being imposed and upon whom they were imposed,
it was argued that the death penalty was cruel and unusual within
the meaning of the Eighth Amendment. Five justices agreed, and
each wrote a separate opinion setting forth his reasoning. Each
found the manner in which the death schemes were then operating
to be arbitrary and capricious. Furman, 408 U.S. at 253 (Douglas,
J., concurring) ("We cannot say from facts disclosed in these
13
records that these defendants were sentenced to death because
they were black. Yet our task is not restricted to an effort to
divine what motives impelled these death penalties. Rather, we
deal with a system of law and of justice that leaves to the
uncontrolled discretion of judges or juries the determination
whether defendants committing these crimes should die or be
imprisoned. Under these laws no standards govern the selection of
the penalty. People live or die, dependent on the whim of one man
or of 12."); Id. at 293 (Brennan, J., concurring) ("it smacks of
little more than a lottery system"); Id. at 309 (Stewart, J.,
concurring) ("[t]hese death sentences are cruel and unusual in
the same way that being struck by lightning is cruel and
unusual"); Id. at 313 (White, J., concurring) ("there is no
meaningful basis for distinguishing the few cases in which it is
imposed from the many cases in which it is not"); Id. at 365-66
(Marshall, J., concurring) ("It also is evident that the burden of
capital punishment falls upon the poor, the ignorant, and the
underprivileged members of society. It is the poor, and the
members of minority groups who are least able to voice their
complaints against capital punishment. Their impotence leaves
them victims of a sanction that the wealthier, better-
represented, just-as-guilty person can escape. So long as the
capital sanction is used only against the forlorn, easily
forgotten members of society, legislators are content to maintain
the status quo, because change would draw attention to the
problem and concern might develop.") (footnote omitted). Thus, as
14
explained by Justice Stewart, Furman means that: "The Eighth and
Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique
penalty to be . . . wantonly and . . . freakishly imposed" on a
"capriciously selected random handful" of individuals. Id. at
310.
In Florida, the Governor has the absolute discretion and
unconstrained power to schedule executions.' The decision by a
Florida governor to sign a death warrant is just as necessary as
the sentencing judge's decision to sign his name to a document
imposing a sentence of death. In Florida, no death sentence can
be imposed unless the judge signs the sentencing order imposing a
sentence of death. Similarly, no individual who recelves a
sentence of death will in fact be executed until or unless the
Governor exercises his discretion to sign a death warrant. Yet,
there are absolutely no governing standards as to how the
Governor should exercise his warrant signing power. In fact, the
Governor's discretion is absolute and subject to no review at
all. All the judicial system's checks, safeguards,
constitutional protections, review, and scrutiny is lost because,
'Unlike Florida, most states have the judicial branch incharge of scheduling execution dates. Either the trial court orthe highest appellate court to hear death appeals determines whenan execution date is ready and should be set. At that point, thecondemned can petition for clemency before those charged withconsidering clemency applications. Only Florida, New Hampshire,see N.H. Rev. Stat. Ann. § 630:5, and Pennsylvania, see 61 Pa.Cons. Stat. Ann. § 4302, vest the governor with suchunconstrained discretion.
15
at the end of it all, the Governor decides who is executed in
Florida.
The Governor's absolute discretion to decide who lives and
who dies must be compared with the standards and limits placed
upon a sentencing judge's decision to impose a death sentence.
The Eighth Amendment requires there to be a principled way to
distinguish between who is executed by a state and who is not.
It is this constitutional principle that has required the
sentencing judge to specifically address what aggravating and
mitigating circumstances are present. It is because of the
Eighth Amendment that Florida requires the sentencing judge to
weigh the aggravating circumstances against the mitigating
circumstances when deciding whether to impose a sentence of
death.
In the past, the State contested whether a Florida jury who
recommends a sentence to the judge in a capital case is subject
to the Eighth Amendment principles that constrain the judge's
sentencing discretion in a capital case. For years the State
contended that because the jury merely made a recommendation to
the judge, and because it was the judge who actually decided
whether to impose a sentence of death, the penalty phase jury was
not subject to the same Eighth Amendment requirements that were
placed upon the sentencing judge. However in 1992, the United
States Supreme Court found that because the jury's role in making
a sentencing recommendation was an essential step in the Florida
capital scheme, the jury should be viewed as a co-sentencer and
16
its decision making process should be subject to the same Eighth
Amendment constraints that had been imposed upon the sentencing
judge in a capital case in Florida. Espinosa v. Florida, 505 U.S.
1079 (1992).
There is no principled way to distinguish between the
individual who signs a document entitled "the sentence" which
imposes a death sentence, a necessary step before an individual
in Florida can be executed, and the individual who signs a
document entitled "death warrant" which is an equally necessary
step before an individual in Florida can be executed. Most death
sentenced individuals in Florida are not executed. More Florida
death row inmates die from natural causes than from execution.
According to information provided to PolitiFact by the Florida
Department of Corrections ("DOC")), 30 of the 55 inmates who have
died on death row since January 1, 2000 have died of causes other
than execution. PolitiFact, What's killing inmates on Florida's
death row? (January 25, 2011), http://www.politifact.com/florida
/statements/2011/jan/25/dean-cannon/whats-killing-inmates-
floridas-death-row/. That means that death sentences being
imposed by the judicial system are in the majority of cases not
the punishment imposed upon Florida's death row inmates. The
actual punishment for the majority of death row inmates is life
on death row. Thus, the Governor of Florida is the ultimate
sentencer, as he chooses the minority of death-sentenced inmates
who will be punished by execution and the majority of
death-sentenced inmates who will be punished by life on death
17
row.
In its order denying relief, the circuit court relied on
this Court's precedent that the Governor's discretion to
determine the length of pre-execution incarceration and the
infrequency of executions are constitutional (PC-R2. 360). While
Mr. Carroll recognizes this Court's precedent, he submits that it
should be reconsidered on the basis that without any meaningful
standards constraining the Governor's otherwise absolute
discretion, Florida's capital sentencing scheme violates the
Eighth Amendment principles set forth in Furman v. Georgia.
For the same reasons that the United States Supreme Court
determined that the Florida penalty phase jury's recommendation
was just as much an essential component to the death penalty
scheme as the judge's decision to impose a death sentence and
found the Eighth Amendment constraints applicable to the penalty
phase jury, the Governor's absolute power to sign or not sign a
death warrant must be subject to the Eighth Amendment. Without
the Governor's signature upon a death warrant, an individual
housed on Florida's death row will never be executed. There must
be enforceable standards placed upon the Governor's otherwise
limitless power to decide amongst the approximate 400 individuals
on Florida's death row who lives and who dies. The Eighth
Amendment requires that there must be a principled way to
distinguish between those who receive a death warrant (which is
necessary to authorize a death sentence to be carried out) and
those who do not receive a death warrant and are thus not subject
18
to execution until or unless the Governor decides to sign a death
warrant authorizing their execution.
Without any meaningful standards, death warrants in Florida
are signed based on any number of subjective whims or outside
influences. The signing of Mr. Carroll's death warrant was
nothing more than a lottery. There were at least 70 death row
inmates who have presented federal habeas petitions to the
federal courts and who have had the federal courts refuse to
grant any habeas relief. There is no principled way to
distinguish between Mr. Carroll and the decision to sign his
death warrant and authorize his execution from the decision to
not sign a death warrant on these individuals who completed one
round of collateral review of their convictions and sentences of
death.
When the Governor has as he does now a pool of some 70
candidates for execution and no governing standards for
determining how to exercise that power, there is no basis for
distinguishing between those who are scheduled for execution and
those who are not. The Florida procedure violates Furman v.
Georgia. Relief is warranted.'
7As an additional basis for denying relief, the circuitcourt found that because the Governor's complete discretion inthis issue has not been modified since Mr. Carroll's deathsentence was imposed in 1992, this claim is procedurally barredbecause Mr. Carroll could have raised it on direct appeal (PC-R2.359).
Mr. Carroll submits that the circuit court's order iserroneous in that this claim did not become ripe for review untilhis death warrant was signed. Until such time, a death sentenced
19
ARGUMENT III
BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR.CARROLL BAS SPENT ON DEATH ROW, ADDING HIS EXECUTION TOTHAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUALPUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTHAMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW.
Mr. Carroll is set to be executed 21 years after his
conviction was returned and a sentence of death was imposed. The
Eighth Amendment' s prohibition on cruel and unusual punishment
precludes the execution of a prisoner who has spent so much time
on death row. This conclusion is derived from the fact that the
Eighth Amendment requires that "the sanction imposed cannot be so
totally without penological justification that it results in the
gratuitous infliction of suffering." Greqq v. Georgia, 428 U.S.
153, 183 (1976). Punishments that entail exposure to a risk that
"serves no 'legitimate penological objective'" and that results
in gratuitous infliction of suffering violate the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 548 (1984) (Stevens, J.,
concurring in part and dissenting in part).8
individual's claim that the governor has complete discretion insigning his warrant is purely speculative. This is evident bythe fact that the Florida legislature has recently passed theTimely Justice Act, which will curtail the Governor's discretionin signing future death warrants.
aWhere, as here, the inherent cruelty of living under asentence of death is prolonged for 21 years, such sufferingcannot be considered incidental to the processing of the appeals.It is unnecessary and thus unconstitutional. Such long-termsuffering becomes a separate form of punishment, which isequivalent to or greater than an actual execution. See Coleman v.
20
In Lackey v. Texas, Justice Stevens wrote:
Though novel, petitioner's claim is not withoutfoundation. In Gregg v. Georgia, this Court held thatthe Eighth Amendment does not prohibit capitalpunishment. Our decision rested in large part on thegrounds that (1) the death penalty was consideredpermissible by the Framers and (2) the death penaltymight serve "two principal social purposes: retributionand deterrence".
It is arguable that neither ground retains any forcefor prisoners who have spent some 17 years under asentence of death. Such a delay, if it ever occurred,certainly would have been rare in 1789, and thus thepractice of the Framers would not justify a denial ofpetitioner's claim. Moreover, after such an extendedtime, the acceptable state interest in retribution hasarguably been satisfied by the severe punishmentalready inflicted. Over a century ago, this Courtrecognized that "when a prisoner sentenced by a courtto death is confined in the penitentiary awaiting theexecution of the sentence, one of the most horriblefeelings to which he can be subjected during that timeis the uncertainty during the whole of it." In reMedley, 134 U.S. 160, 172, 33 L. Ed. 835, 10 S. Ct. 384(1890). If the Court accurately described the effect ofuncertainty in Medley, which involved a period of fourweeks, that description should apply with even greaterforce in the case of delays that last for many years.Finally, the additional deterrent effect from an actualexecution now, on the one hand, as compared to 17 yearson death row followed by the prisoner's continuedincarceration for life, on the other, seems minimal.
514 U.S. 1045 (1995) (J. Stevens, memorandum respecting denial of
certiorari) (citations omitted).'
Balkom, 45 1 U.S. 949, 952 (1981) (Stevens, J., concurring indenial of certiorari); cf. In re Medley, 134 U.S. 160, 172(1890).
9Certainly, the Framers of the United States Constitutionwould not have envisioned that a condemned man would spend 21years awaiting execution. The Eighth Amendment's prohibition oncruel and unusual punishment in the 1776 Virginia Declaration ofRights was based on the 1689 English Bill of Rights. Harmelin v.Michigan, 501 U.S. 957, 966 (1991). The English Bill of Rightssaid "excessive bail ought not to be required, nor excess1ve
21
In a subsequent denial of certiorari review in another case,
Justice Breyer echoed the concerns voiced by Justice Stevens in
Lackey. Justice Breyer wrote in a case involving a defendant who
had been on Florida's death row over 23 years that: "After such a
delay, an execution may well cease to serve the legitimate
penological purposes that otherwise may provide a necessary
constitutional justification for the death penalty." Elledge v.
Florida, 119 S. Ct. 366 (1998) (J. Breyer, dissenting). In yet
another case involving an extended stay on Florida's death row,
Justice Breyer stated:
Nor can one justify lengthy delays by reference toconstitutional tradition, for our Constitution waswritten at a time when delay between sentencing andexecut�041oncould be measured in days or weeks, notdecades. See Pratt v. Attorney General of Jamaica,[1994) 2 A. C. 1, 18, 4 All E. R. 769, 773 (P. C. 1993)(en banc) (Great Britain's "Murder Act" of 1751prescribed that execution take place on the next daybut one after sentence).
Knight v. Florida, 528 U.S. 990, 995 (1999) (J. Breyer,
dissenting from the denial of certiorari). Justice Breyer
described the psychological impact of a long stay on death row:
It is difficult to deny the suffering inherent in aprolonged wait for execution -- a matter which courtsand individual judges have long recognized....TheCalifornia Supreme Court has referred to the"dehumanizing effects of . . . lengthy imprisonment
fines imposed, nor cruel and unusual punishments inflicted" whenexecutions took place within weeks of a death sentence, and if adelay in carrying out the execution was unduly prolonged, itcould be commuted to a life sentence. Riley v. Attorney Gen. ofJamaica, 3 All E.R. 469, 478 (P.C. 1983) (Lord Scarsman,dissenting); Pratt v. Attorney General of Jamaica, [1994) 2 A. C.1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) .
22
prior to execution." In Furman v. Georgia, 408 U.S. at288-289 (concurring opinion), Justice Brennan wrote ofthe "inevitable long wait" that exacts "a frightfultoll." Justice Frankfurter noted that the "onset ofinsanity while awaiting execution of a death sentenceis not a rare phenomenon."
Kniaht, 528 U.S. at 994-995.
More recently, in a concurring opinion denying certiorari
review, Justice Stevens explained:
In sum, our experience during the past three decadeshas demonstrated that delays in state-sponsoredkillings are inescapable and that executing defendantsafter such delays is unacceptably cruel. Thisinevitable cruelty, coupled with the diminishedjustification for carrying out an execution after thelapse of so much time, reinforces my opinion thatcontemporary decisions "to retain the death penalty asa part of our law are the product of habit andinattention rather than an acceptable deliberativeprocess."
Thompson v. McNeil, 129 S.Ct. 1299, 1300 (2009) (Stevens, J.,
concurring in judgment) (citation omitted).
Additionally, a review of international law strongly
suggests that the execution of a condemned individual after 21
years on death row is not consistent with evolving standards of
decency. For example, in 1993 two Jamaican death row inmates
challenged their death sentences on the basis that their 14 year
incarceration on death row violated the Jamaican Constitution's
prohibition against inhuman punishment. The Privy Council of the
United Kingdom invalidated their death sentences and indicated
that a stay on death row of more than five years would be
excessive, and commuted their sentence from death to life in
prison. Pratt v. Attorney General of Jamaica, [1994) 2 A. C. 1,
23
18, 4 All E. R. 769, 773 (P. C. 1993) (en banc). As a result of
the prolonged stays on death rows in the United States, combined
with the inhumane conditions typical of death row, some foreign
jurisdictions have refused extradition of criminal suspects to
the United States where it was likely that a death sentence would
result, on the grounds that the experience of years of living on
death row would violate international human rights treaties.
Soering v. United Kingdom, 11 Eur. H.R. Rep. 439 (1989). In
Soering, the European Court of Human Rights held that the
extradition of a capital defendant, a German national, to the
United States would violate Article 3 of the European Convention
on Human Rights, which bars parties to the Convention from
extraditing a person to a jurisdiction where they would be at
significant risk of torture or inhumane punishment. The Court
cited the risk of delay in carrying out the execution, which in
Virginia averaged between six and eight years. The Court found
that "the condemned prisoner has to endure for many years the
conditions on death row and the anguish and mounting tension of
living in the ever-present shadow of death." Id. at §106. Since
the U.S. government could not assure that the death penalty would
not be sought in the Virginia courts, extradition was barred by
the United Kingdom.
Moreover, a proscription against "torture or cruel, inhuman,
or degrading treatment or punishment," is contained in both the
International Covenant on Civil and Political Rights and the
Convention Against Torture and Other Cruel, Inhuman or Degrading
24
Treament or Punishment. Since the early 1990s, the United States
has been a signatory of both treaties. Under the Supremacy
Clause, those two treaties are binding on the states as well as
the federal government. See Missouri v. Holland, 252 U.S. 416
(1920)." Numerous leading international law tribunals have held
that the prohibition against "cruel, inhuman or degrading
punishment or treatment" prohibits a state from keeping a
condemned person on death row for an inordinate period of time.
See, e.g., Pratt & Morgan v. Attorney General of Jamaica, 2 A.C.
1 (British Privy Council 1993) (en banc) (citing numerous
decisions of courts around the world); Soering v. United Kingdom,
11 European Human Rights Reporter 439 (1989) (extradition to U.S.
to face capital murder charges refused because of time on death
"The U.S. has filed "reservations" with respect to bothtreaties, which contend that the U.S. understands the language"torture or cruel, inhuman or degrading punishment or treatment"to mean the same thing as the phrase "cruel and unusualpunishments" in the Eighth Amendment. See David P. Stewart,United States Ratification of the Covenant on Civil and PoliticalRights: The Significance of the Reservations, Understandings, andDeclarations, 42 DePaul L. Rev. 1183 (Summer 1993). No othersignatory nation has filed a "reservation" or otherwise objectedto that particular language in the treaty. Michael H. Posner &Peter Shapiro, Adding Teeth to the United States Ratification ofthe Covenant on Civil and Political Rights, 42 DePaul L. Rev.1209, 1216 (Summer 1993). Numerous signatory nations have lodgedobjections to the U.S. "reservations" in the United Nations. Thefact that well over 100 nations are signatories of theInternational Covenant on Civil and Political Rights, see id. at1212, means that the language in Article VII of the Covenant hasassumed the status of a "peremptory norm" of international law,or jus cogens. See Siderman de Blake v. Republic of Argentina,965 F.2d 699, 715-16 (9th Cir. 1992). Such a fundamental norm ofinternational law is binding on the federal government and thestates even in the absence of a treaty. See The Paquete Habana,175 U.S. 677, 700 (1900).
25
row if sentenced to death); Vatheeswarren v. State of Tamil Nadu,
2 S.C.R. 348 (India, 1983) ("dehumanizing character of delay");
Sher Singh v. State of Puniab, 2 SCR 582 (India 1983) (Prolonged
delay in the execution an important consideration in considering
whether sentence should be carried out); Catholic Commission for
Justice and Peace in Zimbabwe v. Attorney General, No. S.C. 73/93
(Zimbabwe 1993) [reported in 14 Human Rights L. J. 323 (1993)].
Here, to execute Mr. Carroll after he has already had to
endure 21 years of incarceration under sentence of death, would
be unconstitutionally cruel and unusual punishment." Sgg, e.g.,
Schabas, Execution Delayed, Execution Denied, 5 Crim. L. Forum
180 (1994); Lambrix, The Isolation of Death Row in Facing the
Death Penalty, 198 (Radelet, ed. 1989); Millemann, Capital
Postconviction Prisoners' Right toCounsel, 48 MD. L. Rev. 455,
499-500 (1989) ("There is little doubt that the consciousness of
impending death can be immobilizing... this opinion has been
widely shared by [jurists), prison wardens, psychiatrists and
psychologists, and writers.") (Citing authorities); Mello, Facing
Death Alone, 37 Amer. L. Rev. 513, 552 and n. 251
(1988) (same) (citing studies); Wood, Competency for Execution:
Problems in Law and Psychiatry, 14 Fla. St. U. L. Rev. 35, 37-39
(1986) ("The physical and psychological pressure present in
capital inmates has been widely noted... Courts and commentators
uThe delay in carrying out Mr. Carroll's execution is notattributable to him. In fact, for the past three and a halfyears, Mr. Carroll has been warrant eligible and has had nopleadings pending in any court.
26
have argued that the extreme psychological stress accompanying
death row confinement is an eighth amendment violation in itself
or is an element in making the death penalty cruel and unusual
punishment.") (citing authorities); Stafer, Symposium on Death
Penalty Issues: Volunteering for Execution, 74 J. Crim. L. 860,
861 & n.10 (1983) (citing studies); Holland, Death Row Conditions:
Progression Towards Constitutional Protections, 19 Akron L. Rev.
293 (1985); Johnson, Under Sentence of Death: The Psychology of
Death Row Confinement, 5 Law and Psychology Review 141, 157-60
(1979); Hussain and Tozman, Psychiatry on Death Row, 39 J.
Clinical Psychiatry 183 (1979); West, Psychiatric Reflections on
the Death Penalty, 45 Amer. J. Orthopsychiatry 689, 694-695
(1975); Gallomar and Partman, Inmate Responses to Lengthy Death
Row Confinement, 129 Amer. J. Psychiatry 167 (1972); Bluestone
and McGahee, Reaction to Extreme Stress: Impending Death By
Execution, 119 Amer. J. Psychiatry 393 (1962); Note, Mental
Suffering Under Sentence of Death: A Cruel and Unusual
Punishment, 57 Iowa L. Rev. 814, 830 (1972); G. Gottlieb, Testing
the Death Penalty, 34 S. Cal. L. Rev. 268, 272 and n. 15 (1961);
A. Camus, Reflections on the Guillotine in Resistance, Rebellion
and Death, P. 205 (1966) ("As a general rule, a man is undone
waiting for capital punishment well before he dies."); Duffy and
Hirshberg, Eighty-Eight Men and Two Women, P. 254 (1962) ("One
night on death row is too long, the length of time spent there by
(some inmates) constitutes cruelty that defies the imagination.
It has always been a source of wonder to me that they didn't all
27
go stark, raving mad.") (Quoting former warden of California's San
Quentin Prison).
In its order denying relief, the circuit court found that
the claim was untimely because Lackey was decided in 1995 and
thus Mr. Carroll could have raised it in his 2003 successive
postconviction motion (PC-R2. 360). Additionally, in response to
Mr. Carroll's claim that the delay in carrying out the execution
was not attributable to him because he had been warrant eligible
for over three years with no pending pleadings, the court found
that "this claim is refuted by the various motions for
postconviction relief and petitions for writ of habeas corpus
which he filed after the death sentence was imposed." (PC-R2.
361).
As to the timeliness ruling, the circuit court's order is
erroneous in that Mr. Carroll's claim did not ripen until the
Governor issued a warrant for his execution. By the circuit
court's reasoning, Mr. Carroll was required to have raised the
issue within one year of the decision in Lackey. Yet, Mr.
Carroll had only been on death row for three years at that point,
hardly qualifying as an inordinate amount of time. Surely, had
Mr. Carroll raised the issue at that time, it would have been
denied on the basis that it wasn't ripe for review."
"And, had Mr. Carroll raised the claim in the random yearspecified by the circuit court, 2003, it would likely have beenfound to be procedurally barred for the same erroneous reasoningemployed in the instant, that it was untimely as Lackey had beendenied years earlier.
28
This Court has recognized that claims specifically tied to
facts as they exist at the time of an execution are not ripe
until the death warrant is signed. Eee, e.g., Lawrence v. State,
969 So. 2d 294, 300 n.9 (Fla. 2007) (explaining that before
execution, a claim that the defendant is incompetent to be
executed "is not yet ripe for review.") . Just as in Lawrence,
the facts that matter to Mr. Carroll's excessive delay claim are
those that exist when the death warrant is signed. Because the
claim is just now ripe, it is properly before this Court.
Additionally, contrary to the circuit court's determination,
Mr. Carroll submits that he in fact has had no pending motions in
state of federal court for the past three and a half years.
Prior to his warrant being signed, Mr. Carroll's last state court
proceeding was concluded on May 12, 2005. Carroll v. State, Case
No. SC04-192 (Fla. May 12, 2005). And his federal habeas
proceedings concluded on November 2, 2009, when the United States
Supreme Court denied his petition for a writ of certiorari.
Carroll v. McNeil, 130 S.Ct. 500 (2009). Here, Mr. Carroll
submits that relief is warranted.
ARGUMENT IV
THE CLEMENCY PROCESS IN MR. CARROLL'S CASE WAS APPLIEDIN AN ARBITRARY AND CAPRICIOUS MANNER IN VIOLATION OFTHE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITEDSTATES CONSTITUTION AND CORRESPONDING PROVISIONS OF THEFLORIDA CONSTITUTION.
The United States Supreme Court has recognized that the
importance of the clemency process in a capital case cannot be
understated: "Far from regarding clemency as a matter of mercy
29
alone, we have called it 'the "fail safe" in our criminal justice
system.'" Harbison v. Bell, 129 S.Ct. 1481, 1490 (2009). In
Harbison, 129 S.Ct. at 1494, the Supreme Court explained that
federal habeas counsel may develop in the course of his
representation "the basis for a persuasive clemency application"
which arises from the development of "extensive information about
his [client's] life history and cognitive impairments that was
not presented during his trials or appeals."
While the circuit court in its order determined that Mr.
Carroll had a clemency proceeding at which he was represented by
counsel (PC-R2. 365), whatever proceeding Mr. Carroll was
afforded hardly resembles the "fail safe" envisioned in Harbison.
According to Rule 15B, Rules of Executive Clemency:
In all cases where the death penalty has been imposed,the Florida Parole Commission may conduct a thoroughand detailed investigation into all factors relevant tothe issue of clemency and provide a final report to theClemency Board. The investigation shall include, butnot be limited to, (1) an interview with the inmate,who may have clemency counsel present, by theCommission; (2) an interview, if possible, with thetrial attorneys who prosecuted the case and defendedthe inmate; (3) an interview, if possible, with thepresiding judge and; (4) an interview, if possible,with the defendant's family. The Parole Commissionshall provide notice to the Office of the AttorneyGeneral, Bureau of Advocacy and Grants, that aninvestigation has been initiated. The Office of theAttorney General, Bureau of Advocacy and Grants shallthen provide notice to the victims of record that aninvestigation is pending and at that time shall requestwritten comments from the victims of record. Uponreceipt of comments from victims of record or theirrepresentatives, the Office of the Attorney General,Bureau of Advocacy and Grants shall forward suchcomments to the Parole Commission to be included in thefinal report to the Clemency Board.
30
(Emphasis added). To the best of undersigned counsel's
knowledge, Mr. Carroll was appointed clemency counsel in the past
year; clemency counsel had never represented Mr. Carroll
previously; clemency counsel met with Mr. Carroll two times for
fifteen minutes prior to the hearing; and clemency counsel failed
to make any oral or written presentation on behalf of Mr. Carroll
to the clemency board. Clemency counsel also did not contact
undersigned counsel, who represented Mr. Carroll throughout his
federal habeas proceedings. Further, to the best of undersigned
counsel's knowledge, contrary to Rule 15B, Rules of Executive
Clemency, the Florida Parole Commission did not interview the
trial attorney, the judge, or Mr. Carroll's family.
In its order denying relief, the circuit court also
determined that "[t]he Florida clemency process is an executive
branch function derived solely from the constitution and the
Governor's clemency powers are independent of both the
legislature and the judiciary." (PC-R2. 362). Yet, Mr. Carroll
has a continuing interest in his life until his death sentence is
carried out, as guaranteed by the Due Process clause of the
Fourteenth Amendment to the United States Constitution. See Ohio
Adult Parole Authority, et al. v. Woodard, 523 U.S. 272, 288
(1998) (Justices O'Connor, Souter, Ginsburg and Breyer
concurring) ("A prisoner under a death sentence remains a living
person and consequently has an interest in his life"). This
constitutionally-protected interest remains with him throughout
the appellate processes, including during clemency proceedings:
31
Judicial intervention might, for example, be warrantedin the face of a scheme whereby a state officialflipped a coin to determine whether to grant clemency,or in a case where the State arbitrarily denied aprisoner any access to its clemency process.
Woodard, 523 U.S. at 289 (emphasis added). Here, the circuit
court's determination ignores Ohio Adult Parole Authority, et al.
v. Woodard, in which the Supreme Court held that judicial
intervention was warranted in a case where a clemency system was
arbitrary.
When the clemency process is rendered meaningless, as it
was here, Florida's death penalty scheme is constitutionally
defective. Due process demands that Mr. Carroll be afforded a
clemency proceeding that accurately reflects "a broad picture of
the applicant's history and activities, which assist the Board in
making informed decisions" Annual Report, Fla. Parole Commission,
2007-2008, pg. 24. Given the manner in which the proceeding
occurred, the Clemency Board and the Governor could not have made
an "informed decision" about whether to grant clemency.
The Governor's consideration of clemency without conducting
an investigation or proceeding as required by the Rules of
Executive Clemency, does not comport with due process. As noted
above, some minimal level of procedural due process applies to
clemency proceedings. Accord Duvall v. Keating, 162 F.3d 1058,
1061 (10* Cir. 1998); Young v. Hayes, 218 F.3d 850, 852-53 (8*
Cir. 2000); Workman v. Summers, 136 F.Supp.2d 896, 898 (M.D.
Tenn. 2001). This minimal application requires that a death row
prisoner receive the clemency procedures explicitly set forth by
32
state law, something which Mr. Carroll did not receive. Sge Allen
v. Hickman, 407 F.Supp.2d 1098, 1103-104 (N.D. Cal.
2005) ("Clemency proceedings satisfy the Due Process Clause as
long as the State follows the procedures set out in State law,
the State does not arbitrarily deny the prisoner all access to
the clemency process, and the clemency decision is not wholly
arbitrary or capricious."). The touchstone of due process has
been recognized as fair notice and reasonable opportunity to be
heard. The right to due process entails "'notice and opportunity
for hearing appropriate to the nature of the case.'" Cleveland
Bd. Of Ed. V. Loudermill, 470 U.S. 532, 542 (1985), quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950). "[F]undamental fairness is the hallmark of the
procedural protections afforded by the Due Process Clause." Ford
v. Wainwright, 477 U.S. 399, 424 (1986) (Powell, J., concurring in
part and concurring in the judgment)." Here, relief is
warranted.
CONCLUSION
Based upon the record and his arguments, Mr. Carroll
respectfully urges the Court to reverse the lower court, order a
new trial and/or resentencing, impose a sentence of life
imprisonment, and/or remand for an evidentiary hearing.
"Further, the Florida Constitution provides a right to dueprocess under Art. I, Sec. 9 and a right to clemency under Art.IV, Sec. 8. Neither section anticipated the perfunctory processthat occurred here.
33
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished by electronic transmission to opposing counsel on this
8" day of May, 2013.
CERTIFICATE OF FONT
This brief is typed in Courier 12 point not proportionately
spaced.
/s/ Michael P. ReiterMICHAEL P. REITERFlorida Bar No. 03202344 Mulligan CourtOcala, FL 34472Telephone (813) 391-5025E-Mail: [email protected] FOR APPELLANT
JAMES J. DOWDYFLORIDA BAR NO. 793360Telephone (407) 538-9997E-Mail: [email protected] CO-COUNSEL FOR APPELLANT
34