“Between 2010-2015, in Duval there were 15 defendants sentenced to death,” Fair Punishment Project spokeswoman Stefanie Faucher wrote in a statement to Folio Weekly Magazine. She explains that in 2015, one individual was resentenced to death following an appeal, bringing the total to 16. Duval is responsible for roughly one-fourth of all Florida death-penalty sentences during this time period, despite comprising only 5 percent of the state’s population. And it’s not because we have the worst of the worst in terms of murderers, the study maintains.
The report released Tuesday examines eight of the 16 counties and the factors that make them different from the rest of the nation, which has largely abandoned the death penalty.
The FPP found three commonalities amongst the 16 “outlier” counties that outstrip the rest of the nation in death penalty sentencing.
“In the small number of counties where the death penalty still exists, we found of evidence of egregiously bad defense lawyering, rampant prosecutorial misconduct and overzealousness, and a pattern of racial bias that undermines the fairness of the death penalty,” noted Rob Smith, one of the report’s researchers.
For example, during the five-year period studied (2010-'15), in Duval, 87 percent of defendants sentenced to death were black, a number that is hugely disproportionate to African-American residency in Jacksonville. (Merely 30.1 percent of Duval County residents are African-American.) FPP authors also allude to allegations now pending against County Judge Mark Hulsey before the Florida Judicial Qualifications Commission. Hulsey allegedly told his assistant that he “wished all blacks could be sent back to Africa on a boat.” He presided over a death penalty case in 2012.
A campaign consultant for Judge Hulsey wrote FWM via email that the report merely reiterates allegations that he flatly denies and called this "another of the many, many examples of reports about the allegations that are damaging Judge Hulsey’s chances for re-election."
Overzealous prosecutors and prosecutorial misconduct
FPP names State Attorney Angela Corey and Assistant State Attorney Bernie de la Rionda in its analysis of overzealous prosecutors in Jacksonville. The authors slam Corey for seeking the death penalty against a mentally ill man with an IQ of 67 who had offered to plead to life in prison with no parole. They also mention the non-death-penalty case of an abused 12 year old, Cristian Fernandez, whom she charged as an adult, and Marissa Alexander, who, absent appeal, would have spent 20 years in prison for firing a “warning shot” at her allegedly abusive husband.
But the FPP doesn’t stop there. Based on its analysis of court records, including appeals, the study asserts that 16 percent of Jacksonville’s death penalty cases involve a finding of prosecutorial misconduct.
“All told, of the death sentences that the Florida Supreme Court has reviewed from Duval County since 2006, one in every six cases involved a finding of inappropriate behavior, misuse of discretion, or prosecutorial misconduct, including two recent death sentences tried by Bernie de la Rionda that the Florida Supreme Court vacated due to their excessive harshness. We do not include a case where there is evidence to suggest inappropriate conduct, but defense counsel failed to preserve the claim, nor do we include another case with an improper argument, in this calculation.” (footnotes omitted)
Ineffective public defenders
The authors also maul Public Defender Matt Shirk for decimating the public defenders office:
“It’s bad enough when defendants receive inferior counsel; it’s even worse when the elected Public Defender runs for office by essentially promising to protect police officers at the expense of defendants his office is charged with representing. Matt Shirk, the elected public defender for Duval, Florida, campaigned on a promise to be ‘less confrontational when dealing with police in court, ensuring his employees would never call a cop a liar.’ When Shirk took over, he fired 10 lawyers, including two senior capital litigators whose representation of a wrongfully arrested 15-year-old was the subject of an Oscar-winning documentary film, Murder on a Sunday Morning." (footnotes omitted)
After purging the public defenders office of its most experienced capital litigators, Shirk hired Refik Eler as his chief deputy for homicide defense. The Harvard study cited three different Florida Supreme Court cases where Eler was cited for “ineffective assistance of counsel.” (See also, “Dead Wrong,” Folio Weekly, October 21, 2015) A fourth case is pending.
The FPP authors allude only briefly to Shirk’s hiring-and-firing scandal involving two women, inappropriate texts, and drinking in the office, which culminated in a grand jury recommending that he be removed from office.
Prosecutorial overzealousness and misconduct paired with inadequate defense are systemic deficiencies, the authors say, which too often lead to death penalty cases for people with intellectual disabilities, brain damage, or severe mental illness. In Duval, between 2010 and 2015, that figure was 48 percent.
The study also found that the penalty phase of trial, during which the defense presents evidence that would argue for a less severe punishment for its client, is unusually short in Jacksonville.
“The penalty phase of a capital trial often lasts for weeks and sometimes even months; however, in Duval County, the average length is one day. Frequently, opening statements take place in the morning and the jury returns a death verdict that same day, meaning that the defense only puts on a few hours of mitigation evidence at most. At even the most superficial level, the quality of defense in Duval is abysmal.”
Florida’s death-penalty jury problem
Three other Florida counties (Hillsborough, Miami-Dade and Pinellas) will be examined in FPP’s second report. FPP notes that Florida and Alabama are the only two states that permitted death penalty sentencing by majority-only jury votes, instead of requiring unanimous verdicts.
“In Duval, 88 percent of the decisions in the review period were non-unanimous,” the study’s authors contend in an Aug. 23 press release.
In addition to the Sixth and Eighth Amendment constitutional problems Florida faces by requiring less than unanimous verdicts, there are practical implications, as well. When unanimity is not required, jurors can simply vote and leave, instead of hashing out a life or death sentence that everyone agrees upon through jury deliberations. The authors found that in Jacksonville, on average, it takes only 66 minutes of jury time to sentence a defendant to death.
A recent rash of damning stories
Voters in the Fourth Judicial Circuit will decide on Aug. 30 whether Duval's obsession with the death penalty is, as Harvard calls it, "Too Broken to Fix." On that day, registered Republicans in the district, including 6,500 democrats who jumped party lines in order to vote in the closed primary, will decide whether Corey and Shirk get to keep their jobs.
The State Attorney's Office subsequently issued a response via press release, which defended Corey's office pursuit of the death penalty as just part of the job and further complained that all three articles failed to mention the "most important aspect of these crimes: VICTIMS." The two-page document went on to note that:
"The articles/study also fail to mention the following:
1. We engage in a careful weighing process both before and after indictment and invite mitigation from the defense before proceeding to trial.
2. The number of cases where death could have been sought but we waived the death penalty.
3. The philosophy of and method by which we seek the death penalty in the Fourth Judicial Circuit (Duval, Clay, Nassau Counties) has varied little over four decades and among three elected State Attorneys:
a. Ed Austin 1974 to 1991
b. Harry Shorstein 1991 to 2008
c. Angela Corey 2009 to date..."
The Public Defender's Office did not respond to FWM's request for comment.