It’s not hard to see why voters liked a 2018 constitutional amendment known as “Marsy’s law.” The list of protections it promised seemed sensible, compassionate and victim-focused. But it was based on a deeply flawed California law that defenders of Florida’s famed open-government laws knew would cause problems here, and Florida’s Constitutional Revision Commission didn’t do much to fix those flaws.
Now we’re learning that the flaws go deeper than anyone realized — the question of life and state-sanctioned death.
It has long fallen to Florida’s attorney general to defend transparency and open records. Attorney General Pam Bondi, a member of the revision commission, should have sounded the alarm. She did not.
Ashley Moody, her successor, is no better. She has made no objections to the way Marsy’s Law has cast darkness where light should shine, such as its use by police agencies to shield the names of officers accused of excessive force, including deadly force.
But Moody isn’t ignoring the law altogether. She’s invoking the amendment as a pretext to curtail stays of execution for Florida death row inmates.
Taking the law to death row
If the Supreme Court agrees, it would set a precedent and preclude the last hope of virtually every death row prisoner. Florida already has the nation’s harshest capital punishment regime, and what Moody wants would make it even more extreme.
The Florida Supreme Court almost never stays the execution of a death warrant, and it wasn’t considered likely to in the present appeal by condemned murderer Michael Duane Zack. He asserts fetal alcohol syndrome as grounds for an intellectual disability exemption.
A state judge ruled against Zack, and there’s enough of a record, regardless of Marsy’s Law, for Moody to persuade the court to let Zack die by lethal injection as scheduled on Oct. 3.
But she wants to use Marsy’s Law to shut the courthouse door against any future 11th-hour appeals. That’s consistent with Moody’s avid embrace of capital punishment, but it’s wrong.
The state’s legal position
Moody’s filing cites a Marsy’s Law provision that victims have a “right to proceedings free from unreasonable delay and to a prompt and final conclusion of the case and any related post-judgment proceedings.”
Applying that to stays of execution, she argues, would discourage death row lawyers from waiting until a warrant is signed “to employ extraordinary efforts and expect a stay.”
Zack’s claims, Moody contends, “could all have been brought pre-warrant.”
But the key is whether there’s anything inherently unreasonable about a final attempt to save a human life. (Moody is ardently pro-life when the issue is abortion.)
Stays of execution are the last resort once the governor signs a death warrant. That normally gives the inmate’s lawyer only 30 days to make a final appeal and seek a stay of execution.
Some condemned prisoners may be undeserving of the extreme penalty. Thirty who had been on Florida’s death row were eventually exonerated, more than in any other state.
The importance of preserving the right to seek stays of execution is underscored by how Florida governors have forsaken executive clemency. More than 40 years, and all but the first two of Florida’s 104 modern-era executions have gone by without a commutation.
Preoccupied with procedures
It is irrelevant to the laws and rulings governing criminal appeals whether someone might be innocent or undeserving of the most extreme penalty. All that matters to the courts is whether proper procedures were observed and filing deadlines were met.
In 1983, death row prisoner Joseph Green Brown came within 15 hours of execution before a federal judge granted a stay. Three years later, he won a new trial because Tampa prosecutors had knowingly allowed and exploited false testimony to convict him. The state dropped the charges, exonerating him.
Many years later, he went to prison in North Carolina for murdering his wife. But that subsequent guilt does not erase the fact that he was innocent when Florida nearly killed him.
Moody’s zealousness to invoke Marsy’s Law for hastening executions contrasts with her indifference to how it’s being used to conceal much of what the public needs to know about crime and law enforcement.
Some agencies routinely refuse to identify crime victims even when they or their families have not asked them to. Some conceal where a crime such as a rape or burglary occurred even when a nearby community needs to know.
The Florida Highway Patrol withholds names of victims in single-car accidents where no foul play is suspected. Worst of all, two Tallahassee police officers who shot and killed criminal suspects successfully sued the city to prevent it from releasing their names.
The city’s appeal of that judicial aberration has been pending for more than two years at the Florida Supreme Court. Friend-of-the-court briefs supporting openness were filed by a news media coalition, Volusia Sheriff Mike Chitwood, six public interest groups, the ACLU of Florida, and the City of Miami Civilian Investigative Panel. There should have been one from Moody, but there was not.
If there were ever a time for Florida’s attorney general to advocate the public interest against someone’s “right” to keep their names secret, this case is it. But she obviously cares more for accelerating executions than for Florida’s historic commitment to government in the sunshine.
The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Viewpoints Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, editorial writer Martin Dyckman and Anderson. Send letters to insight@orlandosentinel.com.
