By Raymond Warren
When I retired, presenters at death penalty conferences were referencing the 27 people who had been released from death row after extensive reviews of their cases resulted in their being exonerated. While many of the releases were for DNA exonerations, there are several other reasons why death row inmates have been exonerated. More recently, I read that the number of exonerated death row inmates in Florida is now 30.
Each time a new death row inmate is exonerated, it establishes that a detective erred, a prosecutor erred, a jury erred and a judge erred. Sometimes, they just didn’t do it; in Florida that number is 30 erroneous allegations of murder and accompanying announcements of intent to seek the death penalty, and counting.
In three of my eight first-degree murder trials, juries returned a not guilty verdict to the charge of first-degree murder. (I have posted comments on each of these three trials in these pages previously.)
One was a complete not guilty.
Another resulted in a DUI manslaughter conviction, which was our defense argument from opening statements throughout the entire trial.
The third jury returned a verdict of guilty to second-degree murder, but that client refused to allow me to ask for or argue in favor of any lesser included offenses on the verdict form (I can talk about this as the trial judge released me from the attorney-client privilege during a post-conviction hearing, during which the former client agreed that I had repeatedly asked for permission to argue for a vehicular homicide verdict). She wanted guilty as charged and not guilty as the only choices on the verdict form. The prosecution asked the trial judge for the second-degree murder option on the verdict form.
Since the jury rejected the prosecution’s argument for first-degree murder, there is the possibility that the jury would have convicted of vehicular homicide if given the opportunity and the argument. I will never know.
During that trial, the traffic homicide investigator, on cross-examination, repeatedly admitted that what he had just told the jury during direct examination was “garbage.” My co-counsel told me that each time the investigator said his previous testimony was “garbage”, the lead prosecutor, who was also the homicide division chief for all four counties, would clench his fists. All I did was play the prosecution’s video-surveillance footage a half-second at a time and ask the investigator to explain what each frame depicted. He hadn’t done that before trial, so he didn’t know that point after point (at least 10 points) in his traffic homicide report was rebutted by the State’s own video-surveillance evidence.
Why no one in their entire prosecution team looked at the surveillance video that way before trial remains a mystery to me. I deeply felt that the jury would never come back with a complete not guilty verdict under the undisputed facts, but I still strongly believe the jurors were more than willing to return a verdict for vehicular homicide if they had had that option. When an investigator admits that his impact point as depicted in his direct-examination presentation to the jury is off by approximately 27 feet, it sort of undermines the rest of his testimony.
He also admitted that he just selected an acceleration mark on the bank parking lot pavement from several other acceleration marks without comparing it to the tires on the giant SUV, even though the witnesses had told him that the SUV had backed into a parking space and one said its tires chirped as it was accelerating through the bank parking lot, which was far from the tire mark the investigator selected as the vehicle’s starting point.
Remember, this is a first-degree murder prosecution–where the penalty is up to life in prison without parole–not a theft of hot dogs case.
I don’t know if the investigator is still with the agency. But years after the trial I read that he and a couple of other deputies had been suspended pending investigation of a severe beating of a suspect that a bystander had video-recorded.
Florida’s sentencing guidelines statute details the primary purpose of sentencing is to punish, not to rehabilitate. Indiana actually has a clause in its constitution that preserves the primary focus of its criminal justice system as rehabilitation. I have previously commented on the difference between honor-based societies and respect-based ones. Honor demands vengeance. Respect commands justice. Two significantly different approaches. There really is a vengeful America and a just America. Guess which approach Florida’s government promotes!
Somehow, western European societies have a murder rate of significantly less that one person per 100,000 per year (generally at or below 1 persons per 100,000; the European Union average for 24 countries, including east European outliers, is 1.4), while America’s murder rate hovers at 5 per 100,000 per year.
Raymond Warren was a long-time Assistant Public Defender in the Seventh Judicial District, which includes Flagler, Volusia, Putnam and St. Johns counties.