Sunday, September 30, 2007

Justice Severed

Maharaj went from the high life to a life sentence — 20 years so far for a crime he may not have committed

By Joanne Green
Published: September 27, 2007

Krishna "Kris" Maharaj awoke on October 16, 1986, and donned a white guayabera and dark pants. Shortly after 7:45 a.m., he climbed behind the wheel of his wife's blue Chevrolet Caprice and headed away from the couple's home in western Broward County, toward Miami.

The burly 47-year-old had gone from meager beginnings in Trinidad, struggling to be heard in a family of 13, to driving a truck to make ends meet to becoming an importer in the United Kingdom. In England, the jovial Londoner's name was associated with both high society — he even made a splash among the horsy set as owner of the winning horse at Ascot in 1974, the British equivalent of the Kentucky Derby — and with a stubborn work ethic and humility. His trade in bananas and West Indian produce had made him a millionaire.

When he and his wife, Marita, moved to the United States in the mid-1980s to escape the British weather, Maharaj decided to try his hand at a new career: publishing. In 1985, he partnered with Dereck Jhagroo, a Plantation doctor, to launch a small weekly, the Caribbean Times. They set about drumming up business among South Florida's tight-knit Caribbean community.

According to Maharaj, he was on one such errand that October morning in 1986, heading to the DuPont Plaza Hotel in downtown Miami to meet Bahamian businessman Eddie Dames to discuss distributing his paper overseas. Maharaj would later come to believe the meeting was a trap — one that would lead to charges against him for the murder of two men and a date with a lethal injection.

The 8:30 a.m. meeting, Maharaj says, was arranged by Neville Butler, a freelance writer he'd hired from a rival publication a few weeks prior. By the time he'd parked in front of the hotel, Butler was there to greet him, and the two men headed up to room 1215, but Dames wasn't there. Maharaj says he lounged around waiting, sipping a soda, watching a little TV. When nobody had arrived by 10:20, the busy publisher left.

It was just after 11 a.m. by the time he pulled into the parking lot of his printing press in Fort Lauderdale and bumped into his friend, Caribbean Times Staff Writer Tino Geddes. The reporter was en route to a nearby café, and Maharaj decided to join him for a beer. Maharaj picked up the check and split. "He paid, yeah," Geddes later testified, chuckling. "Kris always paid the check whenever we went out."

Maharaj then met with his accountant, George Bell, and a real-estate agent, inviting the two of them to lunch about 1 p.m. According to the manager at Tark's seafood restaurant in Hollywood, Maharaj enjoyed some oysters, washed them down with a beer, and paid the bill. He headed back to Margate with his two associates, parting ways with them at 3:30 p.m.

Shortly after nightfall, a City of Miami homicide detective received a call from Butler, who claimed to have seen two people shot dead in a hotel room that afternoon. The killer, he claimed, was Maharaj, and he could be found at a Denny's near Miami International Airport.

Dressed in plain clothes and accompanied by another officer, Lt. John Burhmaster sped off to the diner, at Le Jeune Road and NW 25th Street. Burhmaster slid in beside the unsuspecting Maharaj and stared him down. "I told him who I was, put my gun in his side, and told him to get up from the table and act like a gentleman," Burhmaster recalls. Maharaj obliged.

Maharaj was charged with the deaths of Derrick Moo Young, 53, and his 23-year-old son, Duane. The two Jamaican men were found shot to death in room 1215 of the DuPont Plaza, Dames' room, after a housekeeper spotted a red stain seeping under the hotel room's door. It was blood.

A year later, in Maharaj's October 1987 trial, it took the jury less than three hours to convict him. He was sentenced to death. When the verdict was read, Maharaj collapsed and his wife sat sobbing quietly in the first row.

"My husband is a good man," she exclaimed during a recent telephone interview from her home in South Florida, where she has lived for more than two decades. "He did not do this. This has been a huge, a terrible mistake."

Maharaj, housed now in a six-by-nine-foot cell at Martin Correctional Institution in Indiantown, his large fortune long since swallowed up by legal fees, denies any involvement in the Moo Young murders.

Over the past two decades, his lawyers, Miami-based Ben Kuehne and U.K.-based Clive Stafford Smith — who are working his case pro bono — have gathered a wealth of evidence that raises doubts about his guilt. Still, few details of the trial — one that not only imploded in a welter of corruption and betrayal but also saw the original trial judges indicted on bribery and extortion charges related to previous cases — have surfaced in American media.

Maharaj's death sentence was vacated in 1997 by Judge Jerald Bagley, citing a judge's request for the prosecution to prepare the death sentence order before the jury had even found Maharaj guilty. All his subsequent appeals have been denied; all his legal avenues are now exhausted. This past month, in a last-ditch attempt to prove his innocence, his lawyers filed for clemency. Maharaj is pleading with Gov. Charlie Crist to look at the facts and set him free.

"If the governor were to take his least knowledgeable attorney and say 'Read it all,' even a law clerk would say, 'How did this man get convicted?' " scoffs Ron Petrillo, the lead investigator hired by Maharaj's original defense attorney.

How did a mild-mannered British businessman with no criminal record or known propensity for violence come to murder two men in a Miami hotel room?

The prosecution offered both a motive and two witnesses whose damning testimony was crucial in putting Maharaj behind bars. The meat of the prosecution's case was largely based on the testimony of the only witness, Butler.

Maharaj had known Derrick Moo Young for more than 20 years, and the two had become business partners in 1984. Indeed, the Moo Youngs lived next door to Maharaj in Broward County, but the two families had suffered a falling-out over a contentious real estate deal. Just a few months before the murders, Maharaj had filed a civil suit against Derrick Moo Young alleging that the Jamaican owed him more than $240,000.

According to Butler, Maharaj wanted to settle the dispute face to face. At Maharaj's request, Butler said, he agreed to lure the elder Moo Young to room 1215 of the DuPont Plaza, where Maharaj planned to reclaim his money.

Butler contends that when the Jamaican showed up unexpectedly with his son, Maharaj jumped from behind the bathroom door with a gun. An argument ensued, and Maharaj shot Derrick Moo Young repeatedly. Butler claims that he was ordered to tie up the son but that he broke free and ran upstairs. Maharaj chased him down, Butler professed, and executed the young man he had known since he was a boy, a young man who referred to Maharaj as "Uncle."

Butler then alleges Maharaj marched him — at gunpoint — to his car in front of the hotel, where the duo remained for the next three hours, watching for police to arrive.

Butler's story was supported by the dozen sets of Maharaj's fingerprints found throughout the room, which Maharaj had never denied visiting. The projectiles and casings found at the scene were from a 9mm Smith & Wesson, like one owned by Maharaj (and about 270,000 other people, his attorney pointed out).

However damaging Butler's testimony was, it was inconsistent, and he changed a number of elements at various times. First it was Butler who reserved the room; then it was Maharaj. He admitted lying to police about when Maharaj allegedly appeared — first, Butler claimed he showed up at the room unannounced after the Moo Youngs; then he said he leaped out from behind a door inside the suite once they had arrived. Butler also failed part of his polygraph — unlike Maharaj, who passed every question.

Lt. John Burhmaster says he can't remember why Butler was never given a paraffin test to corroborate his assertion that he did not fire a gun that morning, nor does Burhmaster recall why he failed to examine or test Butler's clothing, though the alleged witness admitted he changed his blood-soaked attire before giving a statement. In fact, Burhmaster failed to test any clothing or conduct any paraffin tests. "Maharaj had taken a shower," Burhmaster, who today heads the City of Miami Police Department's homicide division, offered by way of explanation. Burhmaster said he did not think it strange that a murderer would kill two people, spare the only witness, then hold him at gunpoint for hours yards away from the murder scene before allowing him to walk away.

The state's other main witness was Jamaican journalist Tino Geddes, who now lives in Kingston, where he freelances for the Sun-Sentinel, among other publications. Geddes had originally provided an alibi witness for Maharaj. The day after the murders, he told the Miami Herald, "I am certain that this man who I was sitting having a meal with [Maharaj, at Denny's] didn't shoot anybody shortly before that. From his demeanor, no human could sit there with his editor, his wife, and one of his main columnists and could put on an act like that."

But shortly before the trial, he changed his story and testified that Maharaj had been scheming to murder the Moo Youngs.

"At times, in better times, Kris was fun to be with, but there was a dark side, and he had a temper," Geddes said in a thick Jamaican accent during a recent telephone interview with New Times. "The day he was arrested, he said, 'If anyone asks, you were with me.' At the time, I thought I was helping him; it was the sort of thing to do."

Geddes says he was responsible for placing Maharaj in Fort Lauderdale at the time of the murders. "I convinced a businessman in Fort Lauderdale that events that actually happened on Wednesday were on the Thursday. It gave Kris an alibi."

When he realized the severity of the crimes with which his boss was charged, though, Geddes called his initial statement a lie. "Krishna Maharaj had solicited my assistance to murder certain people, including the Moo Youngs, at the very same hotel not two weeks before, but the Moo Youngs never turned up," Geddes told New Times. "On the second occasion, he used Butler... The rest is history. I have absolutely no doubt in my mind that he is guilty."

Defense investigator Ron Petrillo, who got to know Geddes in the run-up to the trial, offers a different take. "A few weeks before the trial, [Geddes] disappeared," Petrillo recalls. "My first reaction was that something had happened to him. Then he called me late one night at my office, and I could tell by the crackling on the line that he was overseas.

"He said 'I'm afraid,' and I told him I could arrange protection for him. The next time I saw him was as a witness for the prosecution."

Geddes laughs at the notion that he was threatened. "That's a lot of rubbish," he says.

But Geddes concedes that he was facing criminal charges at the time of Maharaj's trial for illegally bringing ammunition into Jamaica from the United States. The two Florida attorneys who led the prosecution against Maharaj flew to Jamaica and testified on his behalf to help him escape a jail sentence that might have resulted in his being incarcerated at the time of Maharaj's trial.

"I imagine they felt obliged; they realized with my evidence, they had their man," he says. Geddes also says that the attorneys helped him overcome a DUI charge and that while the prosecuting attorneys were in Jamaica, they accompanied their star witness to a lap-dancing bar.

Despite Geddes' damning U-turn, alibi witnesses swore Maharaj was in Fort Lauderdale when the Moo Youngs were shot. How did the prosecution convince a jury beyond a reasonable doubt that these witnesses were all lying? They didn't need to. Maharaj's original defense lawyer, Eric Hendon — now a Miami-Dade County Court judge — never called them to testify. (In the 20 years since the murders, these witnesses have either died, moved away, or could not be located.)

"When Eric stood up to begin the defense portion of the trial," says Petrillo, who was seated next to Maharaj at the time, "he simply says, 'The defense rests.' The prosecutor's jaw dropped, their mouths fell open, and their eyes got as big as saucers. I thought they were going to fall off their chairs. Kris was holding my arm so tight, I thought he was going to draw blood."

Petrillo claims that Hendon may have been under pressure.

"A few weeks before the trial, Hendon calls me early one morning," Petrillo recalls. "He told me someone had called him at home and threatened him." Hendon offered no greater detail at the time, and though he declined an interview with New Times, he told an appeals court that the witnesses had retracted their statements.

The assertion made Petrillo laugh. "They didn't retract their statements, no way."

During Maharaj's trial, the prosecution presented the Moo Youngs as honest and hard-working. Their tax returns showed an annual income of $20,000. Yet documents found in their briefcase the day they were shot dead suggest that the Jamaicans were not what they appeared.

The contents of the Moo Youngs' briefcase — which were mysteriously not available during the trial — included $1 million in life insurance policies underwritten just three weeks before the murders and $1.5 billion in loans. A senior manager from Ernst & Young later studied the documents and concluded that it "was difficult to rationalize how the Moo Youngs could have become involved in legitimate business dealing of this magnitude." They were, she deduced, either selling drugs or laundering money.

"It is a shame to have to speak ill of the dead, but unfortunately, there were a large number of people who had a motive to kill them," Maharaj's defense team told an appeals court two years ago. They then drew particular attention to another Trinidadian native who was living in South Florida at the time of the killings, Adam Hosein.

Hosein — who is believed to be residing in his homeland but could not be located for an interview — owned a garage in Broward County. He also knew Maharaj from England and bore such a striking resemblance to the Londoner that he reportedly assumed Maharaj's identity to get into horse races. Hosein was also a business associate of the Moo Youngs and allegedly owed them a substantial amount of money.

"I have a sworn statement from a George Abchal in Fort Lauderdale, who used to work at Hosein's garage," Petrillo says. "It was notarized, signed, and tape-recorded. He said Hosein kept a gun and a silencer in the drawer of the desk, and on the morning of the murder, he said Hosein took the gun and left." The gun, Abchal claimed, was a Smith & Wesson, identical to the weapon used to kill the Moo Youngs.

Says Petrillo: "Ask yourself, 'Why is it that nobody heard anything?' "

Abchal also said that days before the Moo Youngs were killed, Hosein had tried to buy six kilograms of cocaine from them on credit. They declined because he allegedly owed them too much money. Court documents show that Hosein also had power of attorney over one of the Moo Youngs' two Panamanian corporations and that Hosein had placed a call to room 1215 the day of the murders. But police never investigated Hosein in connection with the Moo Youngs.

Another potential player, Jaime Mejías, a Colombian importer/exporter from Medellín who rented room 1214, across the hall from 1215, was linked to Hosein, documents show. "I questioned him," Burhmaster retorts, explaining how he chatted with Mejías from the doorway to his suite. Burhmaster says that he peered inside the room without ever entering and that "everything seemed fine." Mejías was ruled out as a suspect, according to Burhmaster, because he "seemed legit." Burhmaster never verified Mejías' alibi, nor did he take his fingerprints or ask him to explain the bloodstain on the door frame of his room.

Immediately following the murders, after occupying an office on the sixth floor of the DuPont Plaza for more than seven years, Mejías disappeared. He was never seen again.

Conservative British Member of Parliament Peter Bottomley gave up his seat at Princess Diana's 1997 funeral in Westminster Abbey to appear before a Florida appeals court on behalf of Krishna Maharaj.

He is one of about 300 British politicians who have since signed a petition calling for a retrial of the Londoner, a list that includes some high-ranking members of Prime Minister Gordon Brown's cabinet.

Despite the support, in 2004, Miami magistrate Judge William C. Turnoff rejected Maharaj's request, stating that "newly discovered evidence which goes only to guilt or innocence is insufficient to warrant relief." Last year, after the Florida Supreme Court refused to hear his case, Maharaj ran out of legal options.

Marita, Maharaj's Portuguese-born wife, remains in Florida, away from European family and friends, steadfast in her devotion. For the 15 years her husband was on death row, she regularly made the 700-mile roundtrip to the prison in Starke, northeast of Gainesville. Today, she lives in Tamarac. "I got married to Kris for life; I married him because I love him. And I will be here as long as he needs me... as long as it takes to get him out of this."

Clemency is her husband's only hope. At the mere mention of the hearing, which isn't likely to be held until 2008, Marita chuckles heartily: "I've already started packing. Believe it or not, I started boxing everything up... ready for when Kris comes home... " The rich laughter is soon replaced by a weary sigh. "I laugh, yes, but this is not a joke. We have been through hell. I just want for us to go home, to London, to live out the rest of our days quietly."

Some of Britain's top legal minds are rallying to help. In August, former British Attorney General Lord Goldsmith wrote to Crist: "The case concerns serious acts of double murder and there is a real question whether they were committed by Mr. Maharaj." A second former British attorney general, Sir Nicholas Lyell, brands the case "a serious miscarriage of justice."

"I'm away from my wife and my family...," the ailing 68-year-old Maharaj mused during a BBC interview in 2004, "for something that I didn't do and I knew nothing about. This is a nightmare. It has to end."

Prison chief looks for better answers


By STEVE BOUSQUET, Tallahassee Bureau Chief
Published September 29, 2007


--------------------------------------------------------------------------------

Jim McDonough runs a growth industry: the Florida Department of Corrections.

In the 18 months since he replaced the fallen James Crosby, the number of prison beds has jumped from 87,000 to 93,000, and it keeps climbing.

"You're the fat cat," Sen. Victor Crist, R-Tampa, told McDonough at a recent budget-cut session.

All Crist meant was, the bigger the agency, the bigger the cut. The words hurt McDonough, despite the retired Army colonel's image as a no-nonsense infantryman ready to charge the next hill.

McDonough tries to balance the need for order in prisons with his conviction that the state does too little to prepare inmates for a return to the streets.

McDonough has a $2.2-billion budget and 27,000 employees.

This state adds the equivalent of 11/2prisons a year, even in an era of declining crime rates. The cost to build a prison is about $100-million. Annual cost to run one: about $40-million.

"We keep passing projections on growth," McDonough says. He knows it's a sign of failure, a reflection of the state's high recidivism rate.

That's why McDonough's vision of prison life includes spending lots more money on substance abuse, literacy and job skills.

His timing isn't the best.

McDonough, like other agency heads, must absorb a cut to pull the state out of its $1-billion hole.

Unwilling to take the easy way out (by giving back money the Legislature gave him for treatment), he looked for creative ways to save money.

But his ideas are clashing with an inflexible "tough on crime" mind-set in the Legislature.

Having served as drug czar when Jeb Bush was governor, he says the state can do a better job of treating inmates' drug problems.

McDonough wanted to ease restrictions on about 3,000 inmates in work-release centers, who are judged as low security risks and are about to return to the streets. None are sex offenders, but some were violent offenders.

He wanted to move so-called year-and-a-day inmates, the ones doing short time, away from hard-core convicts and into tented compounds, and reintegrate them into society with drug treatment programs and halfway houses, to be monitored by probation officers.

McDonough also wanted to use gain time more freely as a carrot to control inmates' behavior, while not violating the law requiring inmates to serve 85 percent of their sentences.

But instead, in the list of $70-million in recommended cuts to the prison system, the first one listed is reducing substance abuse treatment by $3-million, followed by eliminating 75 vacant probation officer slots.

"Ninety-plus percent of these inmates will get out at some point," McDonough told senators. "If they don't have literacy skills, some vocational training and some ability to resist the impulse to take drugs, the recidivism rate will go up."

The prison chief who works for a governor nicknamed "Chain Gang Charlie" may be just too compassionate for his boss, and for the lawmakers who control his budget.

Steve Bousquet can be reached at bousquet@sptimes.com or (850) 224-7263.

Death row ruling may suspend U.S. executions

Supreme Court Review; Case to test if injection method is constitutional

Sheldon Alberts
CanWest News Service

Wednesday, September 26, 2007

WASHINGTON - If the Commonwealth of Kentucky had had its way, Ralph Baze would have been dead this morning, executed by lethal injection for the murder of two police officers more than 15 years ago.

But the 52-year-old death row inmate, originally scheduled to die last night, instead celebrated news that the U.S. Supreme Court would hear his appeal in a high-profile case that could force the suspension of capital punishment in America.

In a surprise decision, the high court justices agreed to review the claim by Baze and a fellow Kentucky death row inmate, Thomas Clyde Bowling Jr., that lethal injection violates the U.S. Constitution's protections against cruel and unusual punishment.

"This is huge news which could, and probably should, lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling," said Douglas Berman, an Ohio State University law professor and author of a popular legal blog.

The decision to take up the Kentucky cases marks the first time in 129 years that the Supreme Court will hear a test of a method of execution on constitutional grounds.

The legality of capital punishment itself is not being challenged, only the question of whether the administration of a lethal three-drug cocktail causes death row inmates unnecessary or unbearable pain.

Nevertheless, the potential consequences of the upcoming Supreme Court ruling are huge. Thirty-six of the 38 American states that allow capital punishment use the same combination of drugs to put condemned prisoners to death.

"I think it is necessarily going to be a nuanced ruling," said Prof. Berman. "It is unlikely to be a curt 'You can't do lethal injection because it always will cause pain.' "

In the 30 years since the death penalty was reinstated in the American states have overwhelmingly turned to lethal injection as a replacement for hanging, gassing, shooting and electrocution, forms of capital punishment deemed inhumane. Of 1,097 executions since 1977, lethal injections have been used 927 times, according to the Death Penalty Information Center.

Two of the nation's largest states, Florida and California, abruptly halted lethal injection executions in 2006 amid a swirl of controversy about the procedure.

In Florida, former governor Jeb Bush took action after it took 34 minutes to kill convicted murderer Angel Nieves Diaz because of a botched needle placement.

In California, Governor Arnold Schwarzenegger ordered revisions to the state's lethal injection procedure after a state judge found a "pervasive lack of professionalism" in carrying out the death sentences.

Most American states carry out the death penalty by injecting inmates first with sodium pentathol, a fast-acting barbiturate that knocks prisoners unconscious. They are then given a dose of pancuronium bromide to stop their breathing and, finally, potassium chloride to stop their heart.

Baze was originally scheduled for execution yesterday, but won a reprieve earlier this month as he awaited news of his appeal.

Lawyers for Baze and Bowling argued last year before Kentucky's Supreme Court that death row inmates are potentially exposed to horrifying pain if given too low a dose of the first drug. The court ruled against them because of "conflicting" evidence about whether prisoners feel any pain.

There was insufficient evidence that lethal injection "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death," the threshold of suffering prohibited by the Constitution, according to the court.

But Baze told The New York Times in 2005: "From all accounts that I've read, the stuff is like liquid fire going into your veins ... Taking my life should be enough ... To make me have to live the last few minutes of it in a living hell is beyond comprehension."

As symbols of the anti-death penalty movement, Baze and Bowling hardly make for sympathetic figures.

Baze was convicted of shooting an eastern Kentucky sheriff and deputy three times in the back when the police officers were serving a fugitive warrant against him.

Bowling murdered a husband and wife, and shot their two-year-old son, outside the couple's dry cleaning business in Lexington, Ky.

The Supreme Court's decision to hear their case is "interesting and not insignificant," says Prof. Berman. "To the extent that they have picked one involving two less than sympathetic fellows may make it easier for them to come up with a less than sympathetic ruling," he said.

Court tackles death penalty


RANDY KREHBIEL World Staff Writer

9/26/2007

The Supreme Court hasn’t heard a case regarding execution form since 1878.

The U.S. Supreme Court agreed Tuesday to hear a Kentucky case with far-reaching consequences for Oklahoma and the nation’s 37 other capital punishment states.

“We will be closely watching this case,” said Emily Lang, a spokeswoman for Oklahoma Attorney General Drew Edmondson. “We use the same chemicals as Kentucky. We will be looking at Kentucky’s process to see how closely it mirrors ours.”

The case, Baze v. Rees, alleges that Kentucky’s lethal-injection law violates the Constitution’s Eighth Amendment ban on cruel and unusual punishment. Not since 1878, when firing squads were upheld as an acceptable means of execution, has the court ruled on an Eighth Amendment challenge to a particular form of capital punishment.

Oklahoma is among several states that list firing squad as a back-up form of execution in the event other methods are declared unconstitutional.

“The court has denied hearing cases about the form of execution for more than 100 years,” said University of Tulsa law professor Lyn Entzeroth. “It may be they decided to hear this one because the issue has come up again and again.”

Thirty-seven of the 38 states with death penalty laws use lethal injection. Oklahoma in 1977 was the first state to adopt the procedure, although it was another 13 years before the state actually put anyone to death.

The procedure involves injecting the condemned person with three chemicals — a barbiturate intended to cause unconsciousness, followed by drugs that stop breathing and the heart. It is supposed to be quick and painless, but several cases of botched executions taking as much as two hours to complete have been reported in recent years.

Most of these have involved difficulty finding suitable veins for the injections or miscalculating the barbiturate dosage. Oklahoma has reported no such cases.

“Any method of execution is cruel and unusual if it’s done poorly,” said the Rev. Bill Wiseman Jr. “The only time I’m aware of any problem (with lethal injection) is when they don’t do it right.”

Now vicar of the Church of the Holy Cross in Owasso, as a young legislator Wiseman wrote Oklahoma’s lethal injection bill. That bill became the model for lethal injection laws nationwide.

Although Wiseman has since said he has reservations about capital punishment, he seems to still think lethal injection is the most humane method available.

“I’m fairly confident I know what the court will decide,” he said during a telephone conversation Tuesday afternoon. “I think they’ll decide that a person being executed has the right for the procedure to be done correctly.”

Oklahoma has carried out 86 lethal injections since resuming executions in 1990 after a 24-year hiatus. Eightytwo executions were performed from 1915 to 1966, when Oklahoma used an electric chair.

In 1972, the U.S. Supreme Court ruled that death penalty laws as then enforced were “capricious and arbitrary,” effectively outlawing the practice in the United States.

Four years later, however, the high court upheld new death penalty laws in Florida, George and Texas, and within a short time 38 states, including Oklahoma, reinstated capital punishment.

Oklahoma ranks third behind Texas and Virginia in the number of executions since 1976. The most recent execution was on Aug. 21, when Frank Welch was put to death. No further executions are scheduled, but the Oklahoma Department of Corrections lists 80 deathrow inmates.

One of them, Charles Taylor, has challenged Oklahoma’s lethal injection law in Oklahoma’s U.S. Western District Court. Taylor was convicted in Pittsburg County of the 1995 murder of Michael Sauer.


--------------------------------------------------------------------------------



A brief history


1608 — First recorded execution in American history at Jamestown, Va.

1878 — U.S. Supreme Court rules execution by firing squad constitutional.


--------------------------------------------------------------------------------



Execution timeline


1890 — First U.S. execution by electric chair.

1915 — First execution at the Oklahoma State Penitentiary in McAlester; previously, executions were carried out by county sheriffs.

1924 — First U.S. execution by cyanide gas.

1966 — James French put to death in electric chair; last Oklahoma execution for 24 years.

1968 — National moratorium on executions begins.

1972 — U.S. Supreme Court, in Furman v. Georgia, rules application of death penalty has been arbitrary and capricious, effectively outlawing capital punishment; Congress and 38 states subsequently pass laws separating the sentencing judgment phases of capital proceedings.

1976 — U.S. Supreme Court rules constitutional new death penalty laws in Florida, Georgia and Texas; Oklahoma reinstates capital punishment.

1977 — Utah firing squad executes Gary Gilmore; first U.S. execution since 1968. Oklahoma passes lethal injection bill that becomes model for similar laws nationwide.

1982 — First U.S. execution by lethal injection carried out in Texas.

1990 — Charles Troy Coleman becomes first prisoner executed under Oklahoma’s lethal injection law; state’s first execution of any kind since 1966.

Aug. 21, 2007 — Frank Welch becomes 86th person executed by lethal injection in Oklahoma since 1990.

Sept. 25, 2007 — Oklahoma Department of Corrections lists 80 death row prisoners.


--------------------------------------------------------------------------------


Randy Krehbiel 581-8365
randy.krehbiel@tulsaworld.com

Accused killer still fighting extradition

Patton charged in ’06 double killing

By JACOB OGLES
jogles@news-press.com
Originally posted on September 30, 2007

A man accused of killing two women in a North Fort Myers home last September has been fighting extradition in Kansas for more than a year.

David Richard Patton has fought against returning to Florida since he was arrested in Topeka on Sept. 23, 2006. On Friday, he bought himself at least another two weeks.

Now his case may need to go before the Kansas Supreme Court before prosecutors in Lee County can start building a case.

Kansas prosecutors say Patton has stalled longer than most defendants.

“This is extraordinarily unusual,” said Robert Hecht, district attorney for the Third Judicial District of Kansas.

Although Kansas prosecutors want to return Patton so he can face trial, attorneys for Patton are prepared to keep him away from Florida for as long as possible to avoid the death penalty.

“All I know is his lawyer has found himself a lifetime job,” said Alan Lind, the husband of Judith Lind, one of the two women Patton is accused of killing.

Patton is accused of bludgeoning to death Lind and her sister, Patricia Perlman, on Sept. 10, 2006, in Perlman’s home before stealing a 2001 Lumina and less than $300 worth of goods, according to the Lee County Sheriff’s Office.

Deputies say Patton took Perlman’s car to Fort Lauderdale after the slayings before hopping on a bus to leave the state.

Authorities learned of the women’s deaths after neighbors reported a fire at Perlman’s Ellis Street home. Once firefighters arrived, they found the women and immediately began investigating the fire and the deaths as suspicious.

It was more than a week before investigators named Patton as a suspect. But shortly after publicizing his identity, deputies tracked down Patton in Topeka, the city where his mother and brother live.

Sheriff Mike Scott said Patton confessed to the killings to Lee County detectives who flew to Kansas.

But since then, he has fought return to Florida. Local prosecutors can’t speed up the process, according to state attorney’s office spokeswoman Samantha Syoen.

“We can’t comment on what another state attorney’s office is doing with the case,” Syoen said. “If you want to know, you have to ask them.”

Ronald Evans, a death penalty attorney with the Shawnee County, Kan., public defender’s office, has filed repeated motions about Patton’s competency to stand trial.

Patton’s wife said the couple had legally separated and were in the midst of a divorce before Patton went to Florida, and he had sunk into depression. He is on medication at the Shawnee County Jail, Joyce Patton said.

Evans would not comment for this story but in February said his client did not want to face capital punishment.

“He will not voluntarily return to face a death penalty,” Evans said then.

Hecht said it isn’t in Kansas’ purview to determine if Patton should die for his accused crimes.

“That is not anything our courts have any business deciding,” he said.

In April, a state court in Kansas agreed, and ruled once a governor’s warrant from Florida arrived, Kansas no longer had jurisdiction.

Evans appealed that decision, but on Aug. 15, the state court of appeals declined to overturn it.

Now the matter is on petition to the Kansas Supreme Court. Hecht has twice filed a motion to lift the stay on Patton’s extradition and surrender him to Florida authorities.

But last week, a judge there said Patton had at least until Oct. 5 to wait for a supreme court decision.

Lee County authorities aren’t fueling up the jets yet. Sheriff’s spokesman Tony Schall said the agency expects a wait before the state supreme court finishes its work, and suspects there may be further appeals.

Hecht said petitions to the Kansas Supreme Court can take as long as nine months to return.

Meanwhile, the family of the victims’ has suffered with a year’s worth of delayed justice. Family friend Trisha Locke said it has been frustrating but the legal delays are being tolerated.

“They would rather make sure things are done correctly from the beginning,” Locke said. “We were all told to expect this.”

Alan Lind said thoughts of his wife weigh on him every day. Widowed at 69, he misses his spouse as he fights medical problems of his own. He hurts when his daughters break down into tears. He notes his wife was killed on Grandparents Day, and tells how his grandchildren underwent six months of counseling after the deaths.

The experiences have worn down his sympathies for the man in Kansas. When asked if he believes the death penalty is appropriate, Alan Lind doesn’t hesitate with an affirmative answer.

“If they can kill him twice, let them kill him twice.”

Saturday, September 29, 2007

Are lethal injections cruel?


Posted by Michael Mayo at 11:18 AM

I don’t know if death by lethal injection is “cruel and unusual punishment,” which would violate the Eighth Amendment of the U.S. Constitution. All I know is that Florida has offered condemned inmates a choice of lethal injection or the electric chair since 2000, and all 20 have chosen the needle.

That’s some telling anecdotal evidence the U.S. Supreme Court might want to consider, now that it has agreed to hear a case challenging executions by lethal injection.

I’ve witnessed two of the 20 executions by lethal injection that Florida has carried out (Aileen Wuornos and Danny Rolling), and the process was disturbingly antiseptic and serene. Neither seemed to suffer, a fact that brought much dissatisfaction to the families of their victims that had come to watch. The whole thing was like watching a rabid dog being put down.

But something obviously went wrong in the death chamber at Starke last December, when Angel Nieves Diaz’s execution lasted an excruciating 34 minutes and witnesses say he appeared to grimace after the three chemicals began to flow. The first chemical is supposed to induce unconsciousness, the second causes paralysis and the third stops the heart.

Death penalty opponents say the process can go awry if the needle isn’t properly inserted into a vein, something that happened to an obese killer in Ohio. Other complications can arise because the executioners often have no formal medical training.

Jeb Bush halted Florida executions after the Diaz incident, appointing a commission to review the process. It recommended changes to the chemical mix.

Gov. Charlie Crist signed his first death warrant in July, ordering the execution of Mark Dean Schwab on Nov. 15. He has since signed another two death warrants.

To me, the death penalty inherently seems “cruel and unusual” but the U.S. Supreme Court ruled otherwise when it reinstated capital punishment in 1976. I've waffled on the death penalty through the years, because victims' families are so vocal in saying it helps ease their pain, and their feelings have to account for something.

But I still think we'd be nobler as a society if we just locked up killers for life with no possibility of parole, a pretty bleak fate and one that doesn't lower us to their level.

If there's going to be a death penalty, lethal injection is probably the best choice of a bad bunch. The electric chair seems especially barbaric, even though courts have upheld their use. Florida came up with an alternative to the electric chair after a series of grisly executions in the late 1990s, replete with flames shooting from hoods and blood.

Florida has executed 64 people in the last three decades, but the application of the death penalty seems arbitrary and inconsistent. There are now 383 inmates on Florida’s Death Row.

At the current average of 2 executions a year, it would take 191 years to finish off everyone already there. Not going to happen.

The Supreme Court will not take up the broader issue of the death penalty overall, just the question of injections.

At the very least, Crist and the state should delay all executions until the Supreme Court rules.

If the recent 20-0 majority spurning “Old Sparky” is any guide, I bet Florida’s condemned are rooting for the needle.

> Discuss this entry

Lethal Injection Under Scrutiny As Justices Agree to Hear Case

By RON WORD

The Associated Press

JACKSONVILLE | Lethal injection was supposed to be the humane, enlightened way to execute inmates and avoid the pain and the gruesome spectacle of firing squads, the electric chair and the noose.

But now it, too, is under legal attack as cruel and unusual, with the U.S. Supreme Court agreeing this week to hear arguments that lethal injection can cause excruciating pain.

Some supporters of the procedure say the notion that inmates suffer is unproven. And they argue that there is nothing wrong with lethal injection itself; instead, they say, the problem is inadequately trained executioners.

In fact, the man who developed the procedure 30 years ago said it is similar to the simple injections given every day in hospitals.

"What causes it to go wrong is that the protocols aren't carried out properly," said Dr. A. Jay Chapman, former Oklahoma medical examiner.

If an execution is about as simple as an ordinary injection, what, then, can go wrong?

the process

In the three-drug process used by most of the 38 states that practice lethal injection, sodium pentothal is given first as an anesthetic and is supposed to leave the inmate unconscious and unable to feel pain. It is followed by pancuronium bromide, which paralyzes the inmate's muscles, and then potassium chloride, which stops the heart.

Foes of capital punishment argue that if inmates are not properly anesthetized, they could suffer extreme pain without being able to cry out.

That could happen in a number of ways: The executioner could inaccurately calculate the dosage needed for an inmate of a given body weight. Or the executioner could fail to administer the full amount, mix the drug improperly, or wait too long between giving the anesthesia and the lethal substance.

In Missouri, a doctor who participated in dozens of executions was quoted recently as saying he was dyslexic and occasionally altered the amounts of anesthetic given.

A botched execution in Florida last year illustrated another way lethal injection could go awry: Angel Nieves Diaz needed a rare second dose of chemicals - and the execution took twice as long as normal - after the needles were mistakenly pushed clear through his veins and into the flesh of his arm.

That left chemical burns in his arm that opponents say probably caused him pain.

During the process, Diaz appeared to grimace. But he did not specifically say he was suffering. And a state panel was unable to determine whether Diaz had been properly sedated or whether he felt pain.

There is no direct proof that inmates have suffered while undergoing lethal injection.

But opponents of lethal injection often cite a 2005 study in the British medical journal The Lancet indicating that the anesthetic can wear off before an inmate dies. The study involved 49 U.S. executions. In 21 of the deaths, the study found, inmates were probably conscious when they received the final drug that stops the heart.

what can states do?

One major issue is how to measure the inmate's level of consciousness after the anesthetic is given.

Execution opponents say they think North Carolina is the only state using a device common in operating rooms to measure brain activity.

The state Corrections Department anesthetizes the inmates and waits for their brain activity to dip to a level indicating they are sedated before pushing in the lethal drug.

Fordham Law School professor Deborah Denno said the problems she sees with executions cannot be easily fixed with technology.

"You need to get better people, get better drugs and have more scrutiny of the process," said Denno.

Similarly, Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes executions, said lethal injection is essentially "a medical procedure being performed by nonmedical persons. These are drugs and procedures borrowed from operating rooms."

But many states find it hard to get doctors to take part because the American Medical Association's code of ethics bars members from participating in executions.

Chapman scoffed at the idea that executioners need to go to medical school to do the job right, saying people could easily be trained.

US Supreme Court to examine legality of lethal injections


WASHINGTON (AFP) — In a move which could slow the rate of US executions, the Supreme Court agreed Tuesday to consider the constitutionality of lethal injections used in almost all the country's death penalty cases.

Amid growing controversy over exactly how lethal injections are administered, the court said it would examine the cases of two men condemned to death in the Southern state of Kentucky.

"It affects virtually everyone on death row," said Richard Dieter, director of the Death Penalty Information Center, who stressed, however, that the court is unlikely to end capital punishment.

"It may be all about a slowdown," he said. "For the next six months or so, we may have executions on hold."

But despite the announcement, authorities in Texas said they planned to go ahead and administer a lethal injection later Tuesday to Michael Richard, 48, sentenced to death for raping and killing a mother of seven children in 1986.

"The execution is still scheduled," Krista Moody, a spokeswoman for Texas governor Rick Perry, told AFP.

"Some countries may hesitate to execute right now, but we're not a country where departments of corrections wait unless they have to."

Rights activists argue that lethal injections are often slow and painful and contradict the constitution's ban on "cruel and unusual punishment."

So far this year, 40 of the 41 people executed in the country have been killed by lethal injection, with one choosing the electric chair. In 2006, there were 53 executions in the United States, all but one through lethal injection.

During an execution, three drugs are administered to the condemned person: one to sedate him, one to paralyze him, and one to stop the heart.

However, there is no national protocol for administering the drugs and it is not always done by a medical professional. While the prisoner may appear calm, several studies and botched executions have shown that death may in fact be prolonged and quite painful.

A 2005 study showed only small amounts of sedatives in the bodies of the condemned, leaving open the possibility that they were awake when the other two medications were injected.

In Florida in December, Angel Nieves Diaz, his eyes wide open, grimaced and shook for more than 30 minutes before finally suffering convulsions and dying.

Authorities later found that the needles were inserted too far and the lethal cocktail was injected outside his veins.

Dieter said instead of ordering an end to executions, the Supreme Court is likely to set a minimum standard.

"I don't think the US Supreme Court is about to eliminate the death penalty with this decision," he said. "I think they're going to say what the standards are for lethal injection."

The high court has never ruled on a particular method of execution. Instead, under legal challenge, states that used gas chambers, hanging or electric chairs switched to lethal injection.

"Now the states don't have another method of execution to turn to," said Deborah Denno, professor at Fordham University in New York.

Although the court has refused to consider several similar appeals in recent years, a hearing is expected in early 2008.

WHEN WILL FLORIDA UNDERSTAND?

FOR IMMEDIATE RELEASE

Last year when the State of Florida executed Angel Diaz, it set in motion a set of events which gave most the hope that a review of a less than humane system of killing would finally take place. Now, a year later, after what seemed to be an encouraging turn of events, we are sorrowfully faced with protocols which have in essence not changed, protocols which in other states have been reason enough to halt executions. Angel Diaz's horrifically botched execution, reluctantly but unavoidably, resulted in an investigation of lethal injection procedures in Florida which for years have walked inmates to their death without review. Set against the growing tide of people against the death penalty in the US and the abominable course of events the day Mr. Diaz was murdered, the DOC was pressured into exposing a system which can only be described as a violation of the Eighth Amendment prohibition regarding cruel punishments. Cruel and appalling are the only two words we can use to describe the 34 minute suffering of Angel Diaz.

At this time Florida is preparing itself to proceed with it's sanctioned killing . Even after a State investigation and a public hearing, very little has changed since Mr. Diaz's execution. Governor Crist has proceeded to sign the death warrant for Mark Dean Schwab, scheduled to be executed in November, under claims by the Department of Corrections that the State's execution team has now been trained under new procedures. Nothing could be further from the truth. Experts have been quick to observe that any changes have been hastily made and fall short of the measures necessary to prevent another botched execution. Concerns about the secrecy of the DOC in conducting executions and lack of any detailed outline of the training or qualifications necessary in the execution chamber are still haunting concerns. It appears in fact that one of the few quantifiable changes to procedure is the addition of a clock in the execution chamber which witnesses within and outside the chamber can view, along with making the said chamber brighter so observers can see the procedure more clearly and take better notes. Do these changes constitute serious attempts to revise the system or is their value nothing more than cosmetic? Perhaps just an attempt to mask the fact that nothing at all will change. Neither of these so called changes address the real issue………. what is being done to ensure that the inmate is totally unconscious and not suffering unspeakable pain which he cannot communicate to those around him?

If it is at all possible to set aside the emotional issues when it comes to the death penalty and it's value as a deterrent to anything, and focus on what we are told are the logistics of this event, we see several issues immerging: issues which have not been addressed. What we are being told by the DOC is that executions will now be presided over by two new 'trained' wardens and the chief of the prison where Death Row convicts are housed. Presumably this is to improve efficiency. Yet at no point are the medical aspects of the execution taken into consideration, nor the fact that this essentially medical procedure requires the presence of medically trained personnel to assess the inmate and his level of consciousness at all times. How can a so called constitutionally valid death by lethal injection ever be performed without the presence of medical personnel and sophisticated medical equipment? This requires a clinical setting with detailed protocol in place. We are lead to believe that the level of consciousness of the condemned inmate is left to the law enforcement officer who presumably will shake the prisoner and call his name to determine the level of awareness he has. Unbelievable! Considering the effects of the paralytic drug which has been administered to him and doesn't permit him to respond while still hearing. How does this conform to the 8th amendment which forbids cruel and unusual punishment in any execution? Recently three federal judges in three very different states of the US have determined that the drug cocktail used to kill an inmate (an anesthetic, something to induce muscle paralysis and something to stop the heart) could cause excruciating pain if an inmate is not sufficiently anesthetized when one or both of the second drugs are administered.

Paralysis, respiratory failure and slow suffocation preventing breathing and thwarting the inmate from crying out surely cannot be the 'humane' ending that the DOC alludes to! In addition the 8th Amendment requires the participation of medically qualified personnel and a degree of clinical proficiency, yet the protocols guarantee nothing more than a vague assurance that the Warden will select as executioner someone who is "fully capable of performing the designated functions" . Could there be anything more vague? Last year a memo to the DOC recommended the use of a bispectral index monitor to determine the levels of consciousness required for an inmate to pass without pain; it's use was declined. Yet again the DOC falls short of it's so called 'guarantee'.

What 'humane' death are they referring to? Circuit Judge Carven Angel has decided that Angel Diaz's death was not botched, that he died within a reasonably short time after the chemicals were injected in a manner that was painless and humane. Quite an about face from his previous misgivings that the DOC procedures were laden with irregularities. If we are therefore to believe that a screaming inmate represents an inhumane death then why does the DOC find it necessary to paralyze the inmate so that he cannot cry out in pain? It is doubtful that many individuals subjected to this procedure have been anaesthetized adequately enough to ensure a level of consciousness necessary to not inflict pain and without the paralyzing agent to immobilize their screams, how many deaths would actually be seen as 'humane'? There is no provision in the so called revised protocol which eliminates the use of this paralyzing agent and no consideration given to the absolute necessity of providing indispensable equipment to monitor consciousness.

And it is cocooned within a set of unchanged practices, that Ian Lightbourne (whose case is being used to litigate the lethal injection issue) has his stay of execution lifted and Mark Schwab faces the chamber. There is no doubt that these executions will happen at the hands of a State who's only requirement is that the executioner be an adult and who's procedures are no better than before Angel Diaz was tortured. No killing can ever be 'humane' ! Even when performed under the most clinical of circumstances it represents an irreversible trauma to the body which is violent by it's very nature. Are we to believe that these minor changes are anything more than pro-forma acts after comments made by Judge Angel in the Lightbourne hearings in July? Is it enough that prison officials will take care not to move the gurney onto which a prisoner is strapped during an execution, and watch the inmate's arms for signs that a needle has been ministered? There is more than reasonable doubt about this! The state won't change the chemicals used in executions, despite medical testimony that the three-drug combination could be excruciatingly painful and secrecy shrouds procedures in several states always in an attempt to cover botched executions. Is this practice what we have to look forward to in the future? The public has a right to know how the killing is being carried out, the procedure should be clear and out in the open. The failures in protocol design, implementation, monitoring and review which in the past have led to the unnecessary suffering of at least some of those executed, have not been changed in their essence in Florida. Participation of doctors in protocol design or execution is ethically prohibited; therefore adequate anesthesia cannot be certain. What guarantee is there therefore that unnecessary cruelty and suffering can be prevented? As things are, so little of what really matters has changed and one can only wonder how many more botched executions it will take place before the killing stops.

Contact info:

Florida Support Starke
PO Box 331 Starke
Florida 32091
USA
info@floridasupport.us

Florida Support
Po Box 63
Glandorf, OH
45848 USA
Dianne Abshire
afua@woh.rr.com

Florida Support Europe
Postbox 3509 Mariero
N-4078 Stavanger
Norway
sissel@floridasupport.us
giusi42@hotmail.com

Restoring felons' rights slowed by bureaucracy

State is chipping away at 100,000-case backlog.

By STEVE BOUSQUET, Tallahassee Bureau Chief
Published September 27, 2007

TALLAHASSEE - Nearly six months after Gov. Charlie Crist and the Cabinet made it easier for some felons to regain their civil rights, the system is choked by a backlog of more than one hundred thousand cases awaiting review.

Tensions between two state agencies that screen ex-offenders, the Department of Corrections and the Florida Parole Commission, are exacerbating the delay because of disagreements over which inmates qualify for review.

"This just highlights the shortcomings of these new rules," said Muslima Lewis, an attorney with the ACLU and director of the Florida Rights Restoration Coalition. "They're so cumbersome, so bureaucratic and so prone to human error that some of the efficiencies we hoped for are not going to be seen."

Since April 5, when the state allowed many non-violent ex-felons to regain their rights without going through a tedious clemency process, about 17,000 inmates have been released from state prison.

Nearly half of that total automatically regained rights that allow them to vote, run for office, serve on a jury and apply for dozens of state-issued licenses. Their cases were resolved immediately because the offenders committed non-violent crimes and did not owe restitution to victims.

They include Krista Terry, 28, of Tampa, who served time for drug offenses. She said she got a job as a legal assistant at a law firm in part because she presented a copy of a certificate restoring her civil rights.

"Employers tend to look upon it more favorably that you've got your civil rights restored," Terry said. "I beg more employers to just give people a chance."

Other felons who did time for more serious crimes, from aggravated stalking to manslaughter, must be investigated and ultimately approved by the Governor and the Cabinet. Murderers and sex offenders are not eligible for faster review under the new system.

All told, the Florida Parole Commission says 34,444 felons have had their rights restored under the new rules since April 5, far more than in any previous six-month period.

But for tens of thousands of former inmates, many released from prison years earlier, the wait goes on. The prison system identified a total of 298,000 ex-inmates eligible for review under the new rules.

On a regular basis, the Department of Corrections sends a list of eligible ex-inmates.

That list goes to the Parole Commission, an agency that has repeatedly survived efforts by legislators to abolish it.

The Parole Commission determines each former inmate's eligibility under the new rules - has the inmate paid restitution, does he have any outstanding warrants or committed new crimes - then makes recommendations to the governor and Cabinet.

The commission says it processes about 7,000 cases a month. The prison system says about 3,000 new people are released every month, so at that rate it would take years to resolve the pending cases.

"There are always fits and starts when you undertake a new process," Corrections Secretary James McDonough said. "It's an intricate process."

Crist and the Cabinet have the final say on old clemency petitions, applications for gun ownership and requests for pardons or commutations of sentence. They meet as the Board of Executive Clemency four times a year.

"It can always be better," Crist said. "We continue to chip away at it and work at it. It's a new day in Florida."

Not quite, say advocates for ex-offenders, who see the changes as incremental and insufficient.

Randall Berg of the Florida Justice Institute says the restitution requirement is a Catch-22 that prevents them from becoming productive citizens.

"If you can't get your civil rights restored, you can't get a job. And if you can't pay off the restitution, you can't get your civil rights restored," Berg said. "In essence, nothing has really changed."

Florida had long been regarded as among the most hostile states in granting full citizenship to people convicted of felonies. The requirement that ex-felons petition the state for basic civil rights dated to the Reconstruction era after the Civil War.

Corrections chief McDonough said about 200 officers were trained to review old cases to weed out ex-felons who have died or moved away, committed new crimes or simply shouldn't have been listed in the first place.

McDonough's goal was to process every case in time for all eligible ex-offenders to vote in the presidential primary Jan. 29.

That's not likely.

McDonough's staff does an initial screening of ex-inmates and sends lists to the Parole Commission, but in the two latest reports the parole agency found as many as one-third of the cases on the prisons' lists should not be there.

"I do not understand your error rate of 28.8%," corrections staffer Tina Hayes wrote in an Aug. 20 e-mail to parole officials.

More than two weeks later, she wrote in a follow-up message: "If the error rate is going up as stated then this is the more reason I need the error messages" to explain the mistakes.

Yet while the system still creaks along much too slowly for some, it still produces many happy endings for others, such as James Avery, a 39-year-old Lakeland truck driver who applied six years ago.

In 1992 Avery was convicted of attempted armed robbery of a Canadian tourist, resisting arrest without violence and fleeing an officer on a Hollywood beach.

"I was in the wrong place at the wrong time and had the wrong friends," Avery said as he apologized for his actions.

"It's good that you're here today," Crist told Avery as he made a motion to wipe away the conviction and restore all his rights, including owning a gun.

Later, holding her husband's certificate of pardon, Wanda Avery said: "We came here hoping and praying, but we didn't expect this at all."

Steve Bousquet can be reached at sbousquet@sptimes.com or 850 224-7263.

Fast Facts:

A THREE-TIERED SYSTEM

Ex-offenders seeking to regain their civil rights in Florida now fall into one of three categories:

LEVEL 1: automatic restoration for non-violent offenders who completed all terms of a sentence, including payment of restitution to victims.

LEVEL 2: Investigation required of violent offenders, who committed crimes ranging from aggravated stalking to computer pornography to manslaughter. Clemency board approval required.

LEVEL 3: Full investigation, hearings required for those convicted of murder and sex offenses. Restitution required.

Source: Governor's Office

Thursday, September 27, 2007

Corrections officer arrested in Pinellas County


PINELLAS COUNTY - A corrections officer that works at the Largo Road Prison facility, located on Ulmerton Road in Largo was arrested Tuesday afternoon.

Florida Department of Law Enforcement and Sheriff's narcotics arrested 24-year-old Kevin Rix and charged him with unlawful compensation, introducing contraband into a prison system, and trafficking in cocaine.

Investigators arrested Rix after they were able to determine that he gave drugs to inmates in exchange for cash. Rix is being held at the Pinellas County Jail.

Rix has been working as a correctional officer since 2005.

Great-uncle jailed without bail in stabbing death of infant boy

By ROCHELLE E.B. GILKEN

Palm Beach Post Staff Writer

Thursday, September 27, 2007

Brandon Cole was asleep in a baby blue Onesie when his great-uncle walked in and stood over his crib with a butcher knife.

Eric Sawyer, 38, said he had mulled killing the 1-year-old for four days.

On Tuesday, just after 8 p.m., he killed Brandon and then confessed in calculating detail, according to the Palm Beach County Sheriff's Office.

Sawyer slashed the boy's abdomen and watched Brandon struggle to breathe for the next four or five minutes, waiting for him to die, according to the arrest report.

The man picked up the still-breathing boy, wrapped him in a sheet and left him on the washing machine in the laundry room, the report stated. His 20-year-old niece found the body and called 911.

The discovery was devastating.

Four adult relatives who were home at the time started screaming in the street, initially assuming that the baby had been attacked by Sawyer's loyal Rhodesian Ridgeback, the sheriff's office said.

But soon they directed their anger at the great-uncle, who court records say is bipolar.

He had no answers to their pleas. He had been despondent all week, and his past aggression led his mother to get a court order banning him from the house at 5804 Orchard Way, according to court records.

Deputies arrived there Tuesday to find Sawyer sitting on the living room couch, shirtless, with blood on his hands.

"I did it," he told them, according to the arrest report. "It's not a dog; it's a human."

Sawyer initially said he thought the baby was possessed, but later explained that he wanted to spare Brandon from growing up in an environment of family squabbles and financial problems, according to the arrest report.

He was "calm and deliberate" in his confession and said he understood that the consequences of his actions could include the death penalty, sheriff's Lt. Michael Reardon said.

At the scene, a deputy put Sawyer in the back of a patrol car for his protection while his frantic family shouted expletives and wailed.

Brandon's mother, 22-year-old JaLynn Davis, who arrived home within minutes of the stabbing, begged to see her baby and kiss him goodbye.

Reardon had to tell her no in order to preserve the evidence.

Sawyer was charged with first-degree murder. Palm Beach County Circuit Judge Paul Moyle ordered him held without bail Wednesday morning at his first appearance in court.

Family members were not in the courtroom and had notified the prosecutor that they did not want contact with him, which the judge ruled Sawyer to obey.

Sawyer's family had struggled with his behavioral issues, though he was arrested only once in Florida.

His mother got an order for protection against domestic violence against him April 3, 2006, banning him from their home in suburban West Palm Beach.

Judith Sawyer, now 58,wrote in her petition that her son was "loud, saying hurtful terrible things (ranting) to my 91-year-old father. ... Eric pushed me against the wall where I hit my head and hurt my left foot. He has become demanding, taking things from me, hiding telephones and on Sunday, threatened to kill me."

The day after Eric Sawyer was served with the injunction, he was arrested after showing up at the house, talking incoherently and refusing to leave.

After he underwent court-ordered mental health counseling at Oakwood Center of the Palm Beaches, his mother returned to the judge two months later, asking for nonviolent contact with Sawyer.

The judge agreed, and in October 2006, the entire protection order expired.

Until Sawyer was arrested, Judith Sawyer allowed her son to live there with Brandon, the child's mother and several other relatives.

He had not worked since February, when he left a job at Publix. He also had worked for a moving company, Reardon said.

He was close to his dog. But his family said his behavior had changed in the past few days.

"He was pacing around the house, not communicating," Reardon said.

Judith Sawyer had no explanation for what happened and was inconsolable, Reardon said.

"She shouted in the street 15 times, asking me, 'Why?' " the lieutenant said.

Relatives have declined to talk to reporters.

Brandon's father, Louie Cole, 27, is in jail in Lake County, where he was arrested in January and charged with violating parole on a felony drug conviction.

Reardon said Brandon appeared to be a healthy boy, living in a decent Spanish-style single-family home. Neighbors said that despite occasional shouting matches inside the house, relatives often sat on the porch with the boy or played with him outside.

"He was a happy baby. I saw him out on the swing. They all sit on the porch, hanging out," said neighbor David Falkinburg, 44, one of the 911 callers.

Falkinburg said he saw Sawyer walking his dog several times. They made small talk about the neighborhood and Falkinburg's broken foot.

"You talk to him a little bit, he seems fine. You talk to him a little more, you realize he's not all there," he said.

But Falkinburg said the look on Sawyer's face Tuesday night was different.

"I've never seen women go crazy like that. They were yelling, being hurt and everything," Falkinburg said. "He (Sawyer) looked like he was in a lost state."

Wednesday, September 26, 2007

Justices to Enter the Debate Over Lethal Injection

By LINDA GREENHOUSE

WASHINGTON, Sept. 25 — The Supreme Court on Tuesday stepped into the debate over whether the most commonly used drug “cocktail” used to execute prisoners on death row is so likely to produce needless pain and suffering as to be unconstitutional.

The justices agreed to hear an appeal by two men on Kentucky’s death row who argue that the combination of three drugs amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

The case, which comes at a time when challenges to lethal injections have effectively stopped executions in a growing number of states, will be argued in January or February and decided by early next summer. While it is pending, judges around the country are certain to be asked to bar executions in those states that are not already under an official or de facto moratorium.

In 2004, while the Supreme Court was considering an ultimately successful challenge to the execution of juvenile killers, judges blocked all such executions.

Of the 38 states with the death penalty, 37 use lethal injection — all except Nebraska, which still uses the electric chair. Lethal injection was adopted in the 1980s as a more palatable alternative to electrocution, but it has proven increasingly troublesome. Leading medical organizations have told their members not to participate, and lawyers for death-row inmates have produced evidence showing that in the absence of expert medical attention, there is a substantial risk of error in administering the combination of anesthesia and paralyzing drugs necessary to bring about a quick and painless death.

Litigation over the issue has brought executions to a halt in nine states: California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Oklahoma and Tennessee, according to lawyers at the Death Penalty Clinic at the Boalt Hall School of Law at the University of California.

The issue in the case, Baze v. Rees, No. 07-5439, is not whether lethal injection, in the abstract, is constitutional or unconstitutional; the question is more specific and less conclusive than that. It is, rather, the standard by which courts are to evaluate the evidence that lethal injection, predictably and with some regularity, goes wrong: that a paralyzing drug can leave an inadequately anesthetized inmate with the ability to feel severe pain as another drug stops the heart, but without the ability to move or call for help.

There have been other problems with lethal injection as well. Four months ago, an execution in Ohio was delayed 90 minutes as medical workers struggled to find a vein in the prisoner’s arm into which they could insert the shunts to carry the intravenous lines.

Under the Supreme Court’s precedents on prison conditions, inadequate medical care is not deemed to violate the Eighth Amendment unless it is the product of “deliberate indifference.” Under the court’s death penalty precedents, a method of execution must not be “contrary to evolving standards of decency” and may not inflict “unnecessary pain.”

In rejecting the challenge to lethal injection last year, the Kentucky Supreme Court found that the method did not present a “substantial” risk of pain and suffering, and so met these constitutional standards. “The prohibition is against cruel punishment and does not require a complete absence of pain,” the state court said.

In their appeal, the two inmates, Ralph Baze and Thomas C. Bowling, represented by the Kentucky Public Advocate’s office, said the Kentucky court failed to consider that the risk of pain was “unnecessary,” in that alternative methods of lethal injection could eliminate the chance that inmates would remain conscious but paralyzed. They urge the justices to incorporate “unnecessary risk” into the standard for evaluating lethal injection.

The three chemicals used for lethal injections are sodium thiopental, which renders a person unconscious; followed by Pavulon, which paralyzes the muscles, including those that control breathing; followed by potassium chloride, which causes cardiac arrest. Lawyers have argued that the second drug could be eliminated and that a less painful drug could be substituted for the third.

The Kentucky attorney general’s office, in urging the justices to turn down the appeal, argued that the fact that the three chemicals were so widely used demonstrated that the protocol was acceptable. “Condemned inmates will never run out of ideas for changes to the procedures, drugs or equipment used during lethal injection,” the state said, warning that the Supreme Court would go “down an endless road of litigation” if it accepted the case.

The two inmates were convicted of separate, unrelated crimes: Mr. Baze for killing a sheriff and deputy sheriff who were trying to serve him with a warrant, and Mr. Bowling for killing a couple whose car he had damaged in a parking lot.

In two earlier cases on lethal injection, the Supreme Court removed procedural obstacles to bringing such cases but did not deal directly with the constitutionality of the method. But those two rulings led to an explosion of litigation.

The only time the court ever ruled directly on a method of execution was in 1878, when it upheld the use of the firing squad. In 1999, the justices agreed to hear a challenge to Florida’s use of the electric chair, but the state substituted lethal injection for electrocution before the case could be decided.

In 1972, the court struck down all existing death penalty statutes, but in 1976 allowed executions to resume under newly written laws that gave jurors more precise guidance in an effort to make death sentences less arbitrary. There have been 1,097 executions since then, with Texas accounting for 403. There have been 40 executions this year, 24 of them in Texas.

Man sentenced to death for 'execution-style slaying'


By SARAH PROHASKA

Palm Beach Post Staff Writer

Wednesday, September 26, 2007

FORT PIERCE — A judge Tuesday described Jimmy Johns' death as a cold, calculated "execution-style slaying," and he decided that the man who shot the longtime auto shop owner in the head during a robbery deserves to lose his own life for it.

Circuit Judge James McCann followed a jury's unanimous recommendation and sentenced 28-year-old Alwyn Tumblin to death for murdering the 67-year-old Johns, a Fort Pierce resident for 30 years. While on Death Row, Tumblin also will serve a life sentence for the armed robbery that led up to the murder, McCann ordered.

After the announcement, two of Johns' stepdaughters said they were pleased with the judge's decision, and the death sentence brings a sort of closure. But, they added, the family will never recover fully from their loss.

"It's over, but it's not," said Johns' stepdaughter Patricia Sanders. "It will probably never really be over for us."

McCann said he weighed several factors in reaching his decision. Those included the fact that Tumblin had been convicted of seven previous violent felonies; the murder was committed during an armed robbery for monetary gain; and it was particularly cold, calculated and premeditated. McCann said the murder "can fairly be characterized as an execution-style slaying" and the robbery was carefully planned in advance.

"The murder of Jimmy Johns was committed without any pretense of moral or legal justification," he said. "The defendant's demands were met with complete and immediate compliance by Mr. Johns, who handed over the money without delay, dispute or comment. Mr. Johns was an unarmed 67-year-old man who posed no threat whatsoever to the defendant prior to being shot."

Johns was working alone, while his employees were out to lunch, inside his business, Jimmy's Auto Clinic on Okeechobee Road, in May 2004. Johns did not resist and handed Tumblin the cash in his pocket, but Tumblin still put a gun to Johns' head, Prosecutors said.

Another man who participated in the robbery told the jury that Tumblin said, "What do you think about this?" before he pulled the trigger.

Tumblin has been involved in the criminal justice system since he was 9 and was convicted of battery of deputies at the courthouse and while in jail.

Retired Assistant State Attorney Lynn Park, who prosecuted the murder case, said the death penalty was appropriate, especially in light of the number of violent crimes Tumblin has been involved in throughout his life.

"He's a danger when he's outside in the community, and he's a danger when he's incarcerated," Park said.

Tumblin's crimes include a 1998 robbery attempt in which a Fort Pierce resident said Tumblin put a gun to his head. Franklin Scott Sloan, said Tumblin and another man attempted to steal his truck.

When Sloan refused to give Tumblin keys and cash, he said, Tumblin pulled out a gun and fired. Sloan ducked, and he said the bullet traveled through his house and didn't hit anyone.

Tumblin's attorneys asked McCann to consider several mitigating factors, including Tumblin's mental health problems and his abusive, dysfunctional family life.

Tumblin showed no visible reaction when McCann announced his sentence.

His attorney left the courthouse without comment. Tumblin's attorneys have previously said they believe the case has "viable" appellate issues, and the death sentence will be automatically appealed to Florida's supreme court.

Acknowledging the lengthy appellate process, Sanders said she hopes that she is still around to see Tumblin's punishment carried out.

"I wish I could be there to say: 'Tumblin, what do you think about this?,' on his day of judgment," Sanders said.

Challenge may halt Florida's scheduled lethal injections


BY MARY ELLEN KLAS

Lethal injection challenge could halt Florida executions
The U.S. Supreme Court decided Tuesday to hear a case that challenges the constitutionality of death by lethal injection, putting Florida's on-again, off-again death penalty back in limbo and potentially postponing executions around the nation.

The high court said it will consider a challenge from two inmates on Kentucky's death row, Ralph Baze and Thomas Clyde Bowling Jr., who claim that the state's lethal-injection procedure violates their constitutional rights.

This is the first time the high court has agreed to consider whether the mix of drugs used in Kentucky, Florida and 35 other states violates the Eighth Amendment's ban on cruel and unusual punishment. Death penalty opponents argue that the administration of the fatal chemicals often causes pain because the anesthesia fails to render the condemned person unconscious.

SWEEPING LANGUAGE

Because the Kentucky case is so broadly written and its lethal injection procedures so similar to those in other states, legal experts say the case could lead to the temporary suspension of scheduled executions across the country. That could include Florida child killer and pedophile Mark Dean Schwab, 38, who is scheduled to die on Nov. 15.

There are 383 inmates on Florida's Death Row.

''The possible implications are infinite,'' said Martin McClain, a death penalty lawyer based in South Florida. 'They could say, `Everything's fine, executions can proceed,' or they can say, 'No, executions cannot proceed.' . . . We could go from zero to infinity.''

The case not only asks if lethal injection is constitutional but whether the drugs and procedures are constitutional, he said. If the court determines the procedure constitutional, the case also asks the court for guidance on how to proceed.

''This is probably one of the most important cases in decades as it relates to the death penalty,'' David Barron, the public defender who represents Baze and Bowling, told the Associated Press.

The high court review ''will have not an effect on Florida unless the Florida Supreme Court issues a stay pending the outcome of the U.S. Supreme Court,'' said Anthony Deluise, spokesman for Gov. Charlie Crist.

Most states use three chemicals for lethal injection: a barbiturate to anesthetize the inmate, a paralyzing agent and potassium chloride, which stops the heart.

DRAWN-OUT DEATH

Florida halted executions last year after condemned inmate Angel Diaz took 34 minutes to die -- twice the usual time -- when executioners missed a vein. An autopsy found that the chemicals were delivered to his soft tissue instead.

After the state changed its execution procedures, including requiring additional training of executioners, Gov. Charlie Crist lifted the ban on executions in August and signed Schwab's death warrant. The state did not change the combination of chemicals used, however, and that has prompted a challenge by Schwab and convicted murderer Ian Deco Lightbourne.

Schwab raped and killed an 11-year-old in 1991 in Cocoa and Lightbourne was convicted of killing an Ocala horse trainer in 1981. Their lawyers argue that the state's new procedures do not fix the problems caused during Diaz's execution.

Lawyers for Lightbourne uncovered an internal memo written by a Department of Corrections official who recommended the state use a monitoring device to determine if the inmate is still conscious when the painful drugs are administered, but corrections chief Jim McDonough rejected that recommendation.

The procedures now call for a warden from another prison to determine the consciousness of the inmate after the paralyzing drug, sodium pentothal, is administered, said Gretl Plessinger, DOC spokeswoman.

''It's similar to the physical check a first aid responder would do,'' she said. It involves, ``calling out the inmates's name, shaking the inmate, looking at the eyes.''

The Florida Supreme Court is scheduled to hear their arguments on Oct. 11.

Death row ruling may suspend U.S. executions

Supreme Court Review; Case to test if injection method is constitutional

Sheldon Alberts
CanWest News Service

Wednesday, September 26, 2007

WASHINGTON - If the Commonwealth of Kentucky had had its way, Ralph Baze would have been dead this morning, executed by lethal injection for the murder of two police officers more than 15 years ago.

But the 52-year-old death row inmate, originally scheduled to die last night, instead celebrated news that the U.S. Supreme Court would hear his appeal in a high-profile case that could force the suspension of capital punishment in America.

In a surprise decision, the high court justices agreed to review the claim by Baze and a fellow Kentucky death row inmate, Thomas Clyde Bowling Jr., that lethal injection violates the U.S. Constitution's protections against cruel and unusual punishment.

"This is huge news which could, and probably should, lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling," said Douglas Berman, an Ohio State University law professor and author of a popular legal blog.

The decision to take up the Kentucky cases marks the first time in 129 years that the Supreme Court will hear a test of a method of execution on constitutional grounds.

The legality of capital punishment itself is not being challenged, only the question of whether the administration of a lethal three-drug cocktail causes death row inmates unnecessary or unbearable pain.

Nevertheless, the potential consequences of the upcoming Supreme Court ruling are huge. Thirty-six of the 38 American states that allow capital punishment use the same combination of drugs to put condemned prisoners to death.

"I think it is necessarily going to be a nuanced ruling," said Prof. Berman. "It is unlikely to be a curt 'You can't do lethal injection because it always will cause pain.' "

In the 30 years since the death penalty was reinstated in the American states have overwhelmingly turned to lethal injection as a replacement for hanging, gassing, shooting and electrocution, forms of capital punishment deemed inhumane. Of 1,097 executions since 1977, lethal injections have been used 927 times, according to the Death Penalty Information Center.

Two of the nation's largest states, Florida and California, abruptly halted lethal injection executions in 2006 amid a swirl of controversy about the procedure.

In Florida, former governor Jeb Bush took action after it took 34 minutes to kill convicted murderer Angel Nieves Diaz because of a botched needle placement.

In California, Governor Arnold Schwarzenegger ordered revisions to the state's lethal injection procedure after a state judge found a "pervasive lack of professionalism" in carrying out the death sentences.

Most American states carry out the death penalty by injecting inmates first with sodium pentathol, a fast-acting barbiturate that knocks prisoners unconscious. They are then given a dose of pancuronium bromide to stop their breathing and, finally, potassium chloride to stop their heart.

Baze was originally scheduled for execution yesterday, but won a reprieve earlier this month as he awaited news of his appeal.

Lawyers for Baze and Bowling argued last year before Kentucky's Supreme Court that death row inmates are potentially exposed to horrifying pain if given too low a dose of the first drug. The court ruled against them because of "conflicting" evidence about whether prisoners feel any pain.

There was insufficient evidence that lethal injection "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death," the threshold of suffering prohibited by the Constitution, according to the court.

But Baze told The New York Times in 2005: "From all accounts that I've read, the stuff is like liquid fire going into your veins ... Taking my life should be enough ... To make me have to live the last few minutes of it in a living hell is beyond comprehension."

As symbols of the anti-death penalty movement, Baze and Bowling hardly make for sympathetic figures.

Baze was convicted of shooting an eastern Kentucky sheriff and deputy three times in the back when the police officers were serving a fugitive warrant against him.

Bowling murdered a husband and wife, and shot their two-year-old son, outside the couple's dry cleaning business in Lexington, Ky.

The Supreme Court's decision to hear their case is "interesting and not insignificant," says Prof. Berman. "To the extent that they have picked one involving two less than sympathetic fellows may make it easier for them to come up with a less than sympathetic ruling," he said.

© National Post 2007

Lethal injection case may affect Schwab

THE ASSOCIATED PRESS

TALLAHASSEE — As the Florida Supreme Court weighs an appeal by convicted rapist and killer Mark Dean Schwab related to the state’s lethal injection procedure, they are being asked to look at a case pending before the U.S. Supreme Court, a lawyer for condemned inmates said Tuesday.

The federal high court agreed earlier Tuesday to scrutinize the constitutionality of lethal injections in a Kentucky case that could affect the way inmates are executed around the country.

The Florida Supreme Court will be asked to take that case into consideration as part of an appeal by Schwab, whose execution date is set for Nov. 15, said Bill Jennings, head of a state legal office that represents death row inmates.

Schwab, 38, has spent 15 years on death row following the 1991 kidnapping, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa.

Sandi Copes, a spokeswoman for Florida Attorney General Bill McCollum, said the U.S. Supreme Court case shouldn’t affect Florida executions.

“It’s a case that’s unique to Kentucky,” Copes said.

All 37 states that perform lethal injections use the same three-drug cocktail, but at least 10 states suspended its use after opponents alleged it was ineffective and cruel, according to the Death Penalty Information Center.

Inmates are injected with an anesthetic, a muscle paralyzer, and a chemical to stop the heart. Death penalty opponents say if the anesthetic wears off before death, the prisoner can suffer excruciating pain without being able to express that due to the paralyzing agent.

Monday, September 24, 2007

Police: Man admits to killing wife


September 24, 2007

Altamonte Springs

A 39-year-old Altamonte Springs man was arrested and charged with killing his wife early Sunday morning, according to the Altamonte Springs Police Department.

About 3:47 a.m. Sunday, police responded to the home of Evangelista and Marilyn Lopez on Turnbull Avenue after getting a 911 call from an adult in the house.

Once at the home, Evangelista Lopez told officers that he had just shot and killed his wife after an argument. Police said the woman, 46, died from multiple handgun wounds.

Evangelista Lopez is being held without bond at the Seminole County Jail.

Etan Horowitz and Sarah Lundy of the Sentinel staff contributed to this report.

Report: Homicides and robberies in Fla. rose last year


Lara Jakes Jordan

The Associated Press

September 24, 2007

WASHINGTON

Violent crime rose nearly 2 percent last year, the FBI reported today in nationwide data that show a slightly higher increase than expected.

The number of big-city murders also increased, by 1.8 percent -- the same rate as homicides nationwide. Robberies and arson also rose in large population centers, but the number of rapes and car thefts dropped, FBI data show.

Florida contributed to the rise in crime, with a 28 percent increase in homicides and a 13.3 percent jump in robberies. Burglaries, thefts and motor vehicle thefts also rose.

The new numbers confirm that crime rates continued on a two-year upward trend after a relative lull in violence between 2002 and 2004.

The rising crime rates have been a concern for the Justice Department, which earlier this year blamed the increases on gangs, guns and youth violence. The Bush administration has pledged to spend $50 million this year to combat gangs and guns, and is pushing Congress for new laws to let the federal government better investigate and prosecute violent crime.

Overall, violent crime rose by 1.9 percent in 2006 -- slightly higher than the 1.3 percent increase reflected earlier this summer in preliminary FBI data. Violent crime in Florida rose 2.3 percent, higher than the country as a whole.

A five-year look at crime rates show that the number of murders, robberies, rapes and other violent offenses committed in 2006 is returning to the peak reached in 2002. Crime dropped dramatically after that, the FBI data show.

In 2006, for example, an estimated 1,417,000 violent crimes were committed across the country. That was a sharp rise from the 1,360,000 crimes reported in 2004 and approaches the estimated 1,425,000-mark reached in 2002.

Board endorses three-year cycle rule amendments

09/24/2007

The Bar Board of Governors has endorsed three-year cycle rule amendments for the Rules of Appellate Procedure, the Rules of Judicial Administration, and the Family Law Rules.

The board received reports from the three rules committees at its August meeting and unanimously supported all of the recommendations. The rules now go to the Supreme Court for its review.

The family rules had the most proposed changes, although many were technical, correcting cross references to renumbered Rules of Judicial Administration.

A change to Rule 12.040 requires an attorney representing the Department of Revenue in a child support enforcement action to file a notice giving the attorney’s relationship with the custodial parent and stating the issues the attorney is authorized to address in the proceedings.

An amendment to Rules 12.490, 12.491, and 12.492 provides that exceptions to a special magistrate’s report should be filed within 10 days of service. A change to Rule 12.410 clarifies that prior court approval must be obtained before a minor child is subpoenaed to appear at a hearing.

Two out-of-cycle rule amendments were also presented and endorsed. One clarifies that under Rule 9.149(c)(4)(B), a petition for ineffective assistance of counsel must be filed within two years in a case where the district court affirms a conviction but remands the case for resentencing. The second adds new provisions to Rule 9.142 to address instances where a prisoner in postconviction proceedings in death penalty cases seeks to dismiss counsel and dismiss pending proceedings.

Board member Tim Sullivan presented the Rules of Judicial Administration amendments.

Those include requiring other rule committees to send changes to the RJA Committee within 30 days, allowing challenges to elections and referendums on constitutional amendments to be handled as priority cases, and requiring someone filing a motion to disqualify a judge to list all prior such motions they have filed. Another change would allow a Florida resident who is licensed to practice law in another state to move to appear pro hac vice in a Florida case if that attorney has an application pending to join The Florida Bar and has not previously been denied admission to the Bar.

The only other amendment is technical, Sullivan said.

The board cannot amend a committee’s proposed rule amendments and can only endorse or reject them, although it can make comments when the rules are submitted to the Supreme Court.

— Courtesy of The Florida Bar news