Appeals process could take years

By Dave Pieklik
It could take more than a decade before John Couey is strapped to a gurney and administered a lethal dose of drugs to stop his heart.

There’s also the chance the convicted sex offender might not see the inside of the execution chamber.

Circuit Judge Ric Howard upheld a Miami jury’s decision in March by sentencing Couey, 49, to death Friday for raping and killing 9-year-old Jessica Lunsford of Homosassa in 2005. Jurors convicted him March 7 of premeditated murder, burglary, kidnapping and sexual battery.

A week later, the jury voted 10-2 to recommend a death sentence by lethal injection.

Though Howard’s order followed his ruling that Couey is not mentally retarded — a claim by his attorneys at trial that would have prevented his execution — an execution date is likely years off. Florida Department of Corrections records say the average wait for people on death row before execution is 12.19 years.

The reason: more than a half dozen avenues for appeals that Couey’s lawyers could take that could cause delays before an execution date is set and he is brought into the execution chamber at Florida State Prison in Starke.

Automatic appeal

State statute 921.141 grants defendants sentenced to death an automatic appeal that is reviewed by the seven justices of the Florida Supreme Court. Court spokesman Craig Waters explains justices will decide whether to schedule oral arguments for Couey’s case, which “they almost always set,” he said.

The arguments will allow Couey’s attorneys to explain opposition to the sentence, while prosecutors can state why execution is warranted. What justices are looking for, Waters says, is “to ensure uniformity of the application of the law throughout the state.”

The court will review similar cases in the state to make sure death recommendations have been evenly applied. “Death penalty law is one of the most complex areas of law there is,” Waters said.

Just getting transcripts of trial testimony can take a year, he added, which is reviewed along with evidence and other material. Justices will issue separate opinions before meeting to work out differences and issuing a final ruling, Waters said.

For more complicated issues, that can take two or more years. Waters said sometimes, the U.S. Supreme Court will issue a ruling that effects Florida’s death penalty, which can lead to revisions in a pending state opinion.

On death row

Before arriving at his 6-by-9-foot cell on Death Row, Couey will undergo a brief screening process likely at a reception medical center in Lake Butler. Department of Corrections spokeswoman Gretl Plessinger said he will be given a psychological evaluation and his health will be examined.

There are two death rows in Florida — Florida State Prison, and Union Correctional Institution in Raiford, though executions are done at Florida State Prison. Howard ordered Friday that Couey be sent to Florida State Prison until his execution date. According to DOC statistics, there are 381 people awaiting executions in the state.

Once Couey arrives at his cell, he will be under almost a constant watch. Plessinger said a sergeant’s desk will be up the hall from the cell until an execution date is set. Then, Couey will be placed in a 12-by-7-foot Death Watch cell with an officer directly outside the cell.

Inmates on Death Row are counted at least once an hour, and wear handcuffs everywhere except in their cells, the shower and the recreation yard. “If they go outside,” Plessinger said of leaving the prison, such as for medical reasons, “they have to be under armed supervision.”

Couey won’t be allowed to watch television in common areas with other inmates, and if he wants to watch TV, he will have to purchase one from the prison canteen. He can also buy a fan, since cells don’t have air conditioning.

He will also be kept separate from other inmates except others on Death Row during recreation. “We try to limit movement as much as possible,” DOC spokeswoman Jo Ellyn Rackleff said.

The execution

Once a death warrant is signed by the governor setting an execution date, Couey will be moved to a Death Watch cell at Florida State Prison. State law allows him to choose his method of execution — electrocution or the state’s alternative method of lethal injection.

If the Florida Supreme Court upholds his death sentence, Couey must write a letter to the prison warden asking for death by electrocution if he chooses the method within 30 days of the opinion’s release. If Couey chooses lethal injection, the DOC’s “Execution Day Procedures” manual explains what takes place.

Couey would be strapped to a gurney and attached to a heart monitor before two IV’s containing saline solution are injected by a private physician, whose identity is kept confidential.

A total of eight syringes would then be used to first inject sodium pentothal to render him unconscious, followed by a muscle relaxant and finally potassium chloride to stop his heart.

Execution procedures were changed after the botched Dec. 2006 execution of convicted murderer Angel Diaz, 55, who took 34 minutes to die — more than twice the normal time —after his IV’s became dislodged. Diaz seemed to grimace and his body shook during the execution, according to reports, leading to a review of the state’s execution procedures.

New changes include closed circuit monitoring of executions, improved training and not moving the inmate once IV’s are connected.

According to DOC records, there have been 64 executions since the state’s death penalty was reinstated in 1976. That followed a U.S. Supreme Court ruling that reversed an opinion stating the death penalty was unconstitutional.

DOC records show 37-year-old Tom Mix became the first person from the county executed — by electric chair in 1944 — for clubbing his 18-year-old wife to death in May 1942.

Sentence reversals

There are no guarantees Couey will be executed for his crime. According to the U.S. Department of Justice’s Bureau of Justice Statistics, 907 people were given death sentences in Florida between 1973 and 2005. Sixty were executed, 40 died on Death Row, and 414 had their sentences or convictions overturned. Another 18 had their sentences commuted.

The number of those with sentences or convictions overturned was the highest in the nation, according to the statistics, with North Carolina second with 281. Inverness attorney Charles Vaughn believes Couey’s sentence could be overturned based on what he feels is Couey’s diminished mental capacity.

Though Howard did not feel that was enough of a mitigating factor to sentence Couey to life in prison, Vaughn feels the issue could weigh heavily in an appeal. He added he’s seen more egregious cases get overturned on appeal.

There are numerous circuit and district courts Couey’s lawyers could file appeals with that could ultimately land the case before the U.S. Supreme Court. Waters, the Florida Supreme Court spokesman, said that could be difficult, considering the court only considers a few hundred cases a year.

However, Waters said the court might apply other state’s laws to Couey’s sentence if they decided to review the case, adding, “There’s a lot of wildcards out there.”