[Congressional Record Volume 140, Number 33 (Tuesday, March 22, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 22, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
NOMINATION OF CHIEF JUSTICE ROSEMARY BARKETT
Mr. HATCH. Mr. President, upon review of her judicial record and of
her testimony before the Judiciary Committee, I have decided that I
must oppose the nomination of Florida Chief Justice Rosemary Barkett to
be a judge of the U.S. Court of Appeals for the Eleventh Circuit. I do
so with regret because I like Chief Justice Barkett, and I consider her
to be a fine person. But, I do so with the firm view that her record
establishes that she will substitute her own policy views for the
written law and take too soft an approach to criminal law enforcement.
In reaching this conclusion, I stress that no judicial nominee needs
to agree with my reading of the law, or any other Senator's reading, in
all or nearly all cases. But, there are just too many cases, across too
wide a range of subjects, where I believe this nominee stepped well
past the line of responsible judging. I and other Senators inquired
about many of these cases at her hearing before the Judiciary
Committee. Incidentally, I notified Chief Justice Barkett in advance of
the cases that would be the subject of inquiry. I was not reassured by
her testimony. Indeed, Chief Justice Barkett herself ultimately
admitted that she overreached or was careless in a number of important
opinions.
For example, in her dissent in University of Miami versus Echarte,
Chief Justice Barkett voted to strike down statutory caps on
noneconomic damages in medical malpractice cases. In addition to a
variety of State law grounds, her dissent also relied upon the Federal
equal protection clause. Without citing any Federal precedent, she
asserted:
I fail to see how singling out the most seriously injured
medical malpractice victims for less than full recovery bears
any rational relationship to the Legislature's stated goal of
alleviating the financial crisis in the medical liability
insurance industry.
In fact, the rational relationship between the means and the goal is
self-evident and was clearly spelled out by the legislature. One might
well disagree with caps on noneconomic damages as a policy matter. But,
Chief Justice Barkett's purported application of rational-basis review
is a stark overreach and a flagrant misuse of the Federal equal
protection clause. At her hearing, she acknowledged that she should not
have relied on that clause.
In another case, Shriner's Hospital versus Zrillic, the nominee again
relied on the rational basis standard under the Federal equal
protection clause--as well as on a variety of State law grounds--in
striking down a statute. In her opinion, she took the remarkable
position that ``underinclusive or overinclusive classifications fail to
meet even the minimal standards of the rational basis test.'' This
distortion of rational basis review into something akin to strict
scrutiny clearly flies in the face of equal protection principles set
forth in nearly 50 years of U.S. Supreme Court precedent.
Justice Barkett's misreliance on the Federal equal protection clause
in these two cases is all the more striking to me in light of her
partial dissent in Foster versus State. There, in seeking to rely on a
theory of statistical racial discrimination in a challenge to the death
penalty, she expressly acknowledged that the Federal equal protection
clause was unavailable to her in light of a Supreme Court decision,
McCleskey versus Kemp, squarely rejecting her view under the U.S.
Constitution. Accordingly, in her Foster opinion she only relied on the
Florida equal protection clause. Yet, she did not recognize the error
of relying on the Federal Constitution when she wrote her opinions in
Echarte and Zrillic. Her failure to appreciate in these two opinions
that Supreme Court precedent foreclosed her reliance on the U.S.
Constitution deeply troubles me. Supreme Court precedent governs lower
courts not only when the claim presented is identical to that
previously rejected by the Supreme Court but also when the basic
doctrinal principles enunciated by the Supreme Court are applicable to
a case. The failure to appreciate this opens the door to judicial
activism--a door, I regret to say, I believe this nominee has
repeatedly walked through.
I also find Chief Justice Barkett's reliance on Federal substantive
due process very troubling. In State versus Saiez, she wrote an opinion
holding that a State law criminalizing the possession of embossing
machines capable of counterfeiting credit cards ``violated substantive
due process under the Fourteenth Amendment to the United States
Constitution.'' Briefly, let me just say here, this expansive,
substantive use of the due process clause is insupportable under
Supreme Court precedent. The nominee testified that she was really
relying on State due process grounds and her inclusion of the Federal
due process clause was ``careless''.
Now, I can accept that, on occasion, a sitting judge may wish to
phrase an opinion differently, in hindsight, or even believe that he or
she got an opinion wrong. But tossing into her opinion the Federal
equal protection clause and the Federal due process clause, on
occasions where they very clearly do not belong, raises concerns that I
do not find assuaged by testimony acknowledging this was erroneous.
These two clauses are among the most powerful tools a judge can use, if
so inclined, to legislate from the bench. In the case of the equal
protection clause, virtually every law classifies people into at least
two classes on some basis. Congress might enact limits on medical or
product liability, which are subject to equal protection analysis as a
component of the due process clause of the fifth amendment. States or
Congress may seek to remove recipients from welfare rolls after a time
limit of 2 years. A misreliance on Federal equal protection in
reviewing these laws would lead to their erroneous invalidation. In the
case of the due process clause, there is a tendency by some judges and
commentators to read almost anything into it. This is all the more
troubling because the misuse of these two clauses is not subject to
limiting principles of judging, but only to the whim of the judge.
There will be many cases of first impression before the eleventh
circuit. There will also be many times when precedents must be
construed, and they may be construed broadly or narrowly. Most
appellate decisions are not reviewed by the Supreme Court. These
errors, then, are not merely technical or academic.
My concern about the nominee's approach to judging is heightened by
other cases. For example, in a redistricting case (In re
Constitutionality of Senate Joint Resolution 2G), the Florida Supreme
Court selected from among six different modifications to a state
legislative redistricting plan. Writing ``dubitante,'' Justice Barkett
stated that she was--
loath to agree to any of the convoluted plans submitted under
these hurried circumstances * * * If I had to choose only
among those presented, however, I would choose the plan
submitted by the NAACP simply because this is the
organization that has traditionally represented and promoted
the position that advances all minority interests.
At her hearing, Justice Barkett recognized that this opinion gave a
clear appearance of partiality, as it expressed a preference for a
party based on who the party was rather than the merits of that party's
argument. She stated that she wished she had written her opinion
differently.
On an occasional lapse, I am willing to give the benefit of the doubt
to a nominee. But there are just too many instances in Justice
Barkett's judicial record--the principal basis for evaluating her
nomination--of overreaching, and on very significant issues, to leave
me comfortable with elevating her to the eleventh circuit.
There are many other cases that concern me. For example, in Stall
versus State, Chief Justice Barkett joined a dissent striking down a
State obscenity statute on State law grounds. She also wrote separately
in an opinion that, again, is sweeping and overbroad.
There are several problems with this dissent.
First, her statement that, ``A basic legal problem with the
criminalization of obscenity is that it cannot be defined'' is flatly
contradicted by the U.S. Supreme Court's landmark opinion in Miller
versus California (413 U.S. 15 (1973)), which Chief Justice Barkett
does not even acknowledge, much less discuss.
Second, she sweepingly claims that an obscenity law such as the one
in Florida violates ``every principle of notice and due process in our
society''--not, I might add, a statement limited to state law
principles, and, again, contradicted by the Miller decision.
Third, Chief Justice Barkett's opinion mischaracterizes the Florida
law in the case: That law does not turn on the ``subjective'' view of a
handful of law enforcement people and jurors or judges, as she
incorrectly suggests. The Florida law incorporates the standard set
forth by the U.S. Supreme Court in Miller. The law bans materials that,
judged by contemporary community standards, appeal to the prurient
interest, that depict or describe, in a patently offensive way,
specifically defined sexual conduct, and that lack serious literary,
artistic, political, or scientific value. Thus, the role of jurors or
judges under this law would not be to make their own ``subjective
definition'' of what is obscene, but rather to discern and apply
existing community standards.
Incidentally, while I am pleased that she voted to uphold a Florida
child pornography statute in a different case, I make two observations.
First, this does not mitigate her sweeping views about the more general
subject of obscenity. Second, contrary to her testimony, the child
pornography statute is a different statute from the one she voted to
strike down in Stall.
I have all of these concerns, and have yet to reach the issue of
criminal law enforcement generally and the issue of the death penalty.
There is much to say on these subjects.
With respect to criminal law issues aside from the death penalty, I
believe that the nominee has too often erroneously come down on the
side of lawbreakers and against police officers and law enforcement.
She has exhibited an unduly restrictive view of the Fourth Amendment
that would hamstring the police, especially with regard to controlling
drugs.
[See, e.g., Bostick v. State, 554 So.2d 1153 (Fla. 1989),
rev'd, 111 S.Ct. 2382 (1991), on remand, 593 So.2d 494 (Fa.
1992); State v. Riley, 511 So.2d 282 (Fla. 1987), rev'd, 488
U.S. 445 (1989), on remand, 549 So.2d 673 (Fla. 1989); Cross
v. State, 560 So.2d 228 (Fla. 1990); Sarantopoulos v. State
(Fla. Dec 9, 1993)].
For example, in Bostick, a case involving cocaine trafficking,
Justice Barkett adopted an across-the-board, per se ban on passenger
searches on intercity buses even though Supreme Court precedent clearly
called for an analysis of a search's legality based on all of the
particular circumstances of the search. The U.S. Supreme Court reversed
her.
The U.S. Supreme Court also reversed her in the Riley case, where her
misapplication of precedent would have led to dismissal of charges
against criminals growing marijuana. In yet another drug case, the
Court criticized her overbroad reading of precedent.
In her dissent in a case called Cross, Justice Barkett refused to
credit the testimony of police officers that they had seen cocaine
packaged in the same peculiar way on hundreds of occasions in their
combined 20 years of law enforcement. In so doing, she ignored Florida
precedent cited by the majority that provided that the observation of
an experienced policeman of circumstances associated with drugs could
provide probable cause for an arrest.
In another dissent, she ignored settled principles enunciated in U.S.
Supreme Court precedent in finding that someone who was growing
marijuana in his backyard had his fourth amendment rights violated when
police, acting on a tip, looked over a 6-foot fence, spotted the
marijuana plants and then obtained a search warrant. Rather than
inquiring whether the defendant had an expectation of privacy that was
objectively reasonable, Chief Justice Barkett simply displayed her
personal opposition toward what she regarded as overly intrusive law
enforcement.
Justice Barkett has also written opinions striking down narrowly
drawn laws that ban loitering for the purpose of prostitution and drug
dealing. These opinions are badly flawed and misapply precedent.
Moreover, they seriously disable communities from preventing harmful
crime.
In my view, there are too many other instances where she
unjustifiably construed criminal statutes in favor of criminals.
[See, e.g., State v. Bivona, 460 So.2d 469 (Fla. DCA 1984),
rev'd, 496 So.2d 130 (Fla. 1986); Gayman v. State, 616 So.2d
17 (Fla. 1993).]
With regard to the death penalty, I appreciate that the nominee has
voted to uphold the death penalty a number of times. I would expect as
much in a State with a lawful death penalty and, unfortunately, a great
deal of violent crime. But as I stated at Justice Barkett's hearing, a
proper inquiry into a nominee's judicial outlook on the death penalty
is not ended merely by noting that the nominee has upheld the death
penalty in a number of cases, where even the most activist of judges
cannot avoid its imposition. If a nominee exhibits a clear tendency to
strain for unconvincing escapes from the imposition of the death
penalty in cases where that penalty is appropriate, then that raises
concerns in my mind about the nominee's fidelity to the law, no matter
how many times the nominee may have upheld the death penalty in other
cases. From my review of her record, I have concluded that Justice
Barkett clearly exhibits such a tendency.
Let me further note at this point that one of Justice Barkett's
dissenting opinions would render the death penalty virtually
unenforceable, unless imposed on the basis of racial quotas. Her
partial dissent in Foster versus State, had it been the law of Florida
when she joined the Florida Supreme Court, would likely have led to a
different outcome in many, if not virtually all, of the cases where she
did vote to uphold the death penalty. Indeed, the theory she embraced
in Foster, until its rejection by the U.S. Supreme Court in 1987, had
become a principal weapon in the antideath penalty movement's arsenal.
Overall, I believe that Justice Barkett, in reviewing death
sentences, views aggravating circumstances too narrowly; construes
mitigating circumstances too broadly; creates unjustified categorical
exclusions from death penalty eligibility; subjects the death penalty
to racial statistical analysis that would paralyze its implementation,
as I have just discussed; and creates procedural anomalies.
Let me mention just two of the many cases that concern me. Dougan
versus State is a 1992 Florida Supreme Court case.
Dougan was the leader of a group that called itself the Black
Liberation Army and that, according to the trial judge, had as its
``apparent sole purpose * * * to indiscriminately kill white people and
thus start a revolution and a race war.'' One evening in 1974, he and
four other members of his group, armed with a pistol and a knife, went
in search of victims. They picked up a white hitchhiker, Steven
Orlando, drove him to an isolated trash dump, stabbed him repeatedly,
and threw him to the ground. As Orlando writhed in pain and begged for
his life, Dougan put his foot on Orlando's head and shot him twice--
once in the chest and once in the ear--killing him instantly.
Subsequent to the murder, Dougan made several tape recordings bragging
about the murder, and mailed them to the victim's mother as well as to
the media. The following excerpt from one of the tapes aptly
illustrates the content:
He was stabbed in the back, in the chest and the stomach,
ah, it was beautiful. You should have seen it. Ah, I enjoyed
every minute of it. I loved watching the blood gush from his
eyes.
The Florida Supreme Court upheld the death penalty for Dougan.
Justice Barkett and another Justice joined a remarkable and very
disturbing dissent by Justice McDonald in which she voted to reduce the
death penalty to life imprisonment, with eligibility for parole in 25
years.
I rarely fault a nominee about an opinion the nominee has joined
rather than written. And I do not hold a nominee to every word or
phrase in an opinion he or she joins. There is an outlook which
pervades this dissenting opinion, however, which is so striking and
disturbing that I believe it is appropriate to consider it in
evaluating this nomination. This is especially so in light of the fact
that in many other cases Justice Barkett has written separately, or
merely stated that she concurred in, or dissented from, the result,
when another opinion had not suited her.
Normally, I would summarize this dissent, but I do not want anyone
listening to think that I am distorting it. Accordingly, I am going to
read verbatim excerpts from it:
This case is not simply a homicide case, it is also a
social awareness case. Wrongly, but rightly in the eyes of
Dougan, this killing was effectuated to focus attention on a
chronic and pervasive illness of racial discrimination and of
hurt, sorrow, and rejection. Throughout Dougan's life his
resentment to bias and prejudice festered. His impatience for
change, for understanding, for reconciliation matured to
taking the illogical and drastic action of murder. His
frustrations, his anger, and his obsession of injustice
overcame reason. The victim was a symbolic representation of
the class causing the perceived injustices.
To some extent, [Dougan's] emotions were parallel to that
of a spouse disenchanted with marriage, full of discord and
disharmony which, because of frustration or rejection,
culminate in homicide. We seldom uphold a death penalty
involving husbands and wives or lovers, yet the emotion of
that hate-love circumstance are somewhat akin to those which
existed in this case.
Such a sentence reduction should aid in an understanding
and at least a partial reconciliation of the wounds arising
from discordant racial relations that have permeated our
society. To a large extent, it was this disease of racial
bias and discrimination that infect an otherwise honorable
person and contributed to the perpetration of the most
horrible of crimes. An approval of the death penalty would
exacerbate rather than heal those wounds still affecting a
large segment of our society.
This opinion reeks of a moral relativism and excuse-making that I
find shocking and unacceptable. As much as I personally like Chief
Justice Barkett, I find it disturbing that President Clinton would
nominate someone to a judgeship who applied these views to judicial
decisions.
In the October 11, 1992, Sunshine magazine, the following reactions
to this Dougan dissent are quoted:
``How can they compare a cold-blooded, premeditated,
torturous crime that's motivated by racial hate and equate
that to the emotional circumstances in domestic murders?''
asks prosecutor Chuck Morton, himself a black man, after
rereading the Dougan case.
Adds Tallahassee prosecutor Ray Markey: ``To say that this
white victim was a sacrificial lamb and call it a social
awareness case--that's scary.''
The Dougan majority had this to say in response to the dissent that
Justice Barkett joined:
We disagree with the dissent that this pitiless murder
should be equated with the emotional circumstances often
existent in homicides among spouses. While Dougan may have
deluded himself into thinking murder justified, there are
certain rules by which every civilized society must live. One
of these rules must be that no one may take the life of
another indiscriminately, regardless of what that person may
perceive as a justification.
Our review must be neutral and objective. This Court
recently upheld the death penalty in the indiscriminate
killing of two blacks by a white defendant. The circumstances
of this case merit equal punishment. To hold that death is
disproportionate here would lead to the conclusion that the
person who put the bomb in the airplane that exploded over
Lockerbie, Scotland, or any other terrorist killer should not
be sentenced to death if the crimes were motivated by
deepseated philosophical or religious justifications.
Let me explain why the general attitude and outlook adopted by
Justice Barkett in that dissent concern me so much. The approach taken
in that dissent is certainly applicable to others besides Dougan,
including criminals of all races. Let me note that we have many cases
in our country of racially motivated, disgusting, violent crimes
against racial minorities. I do not view the perpetrators of such
violence as worthy of a lesser penalty on account of their backgrounds
or personal histories either.
If a person of any race, ethnic background, or social class
considering violent or other crimes comes to believe that the judicial
system views past mistreatment or discrimination against them as
mitigating the seriousness of the crimes they commit or the penalties
they face, I believe you undermine the principle of neutral justice and
seriously reduce the deterrent value of the law. You create, frankly,
an environment or atmosphere of permissiveness if these kinds of
reasons can be used to justify lesser sentences. And I am not only
talking about murder cases, such as the recent Colin Ferguson case on a
Long Island commuter train. I mean other crimes as well, assault,
robbery, carjackings.
Before Senators cast their votes on this nominee, they should read
the opinions in this Dougan case, along with any other opinions they
deem relevant. Mr. President, I ask unanimous consent that a copy of
the Dougan case be included in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. HATCH. In another case, LeCroy v. State [533 So.2d 750 (Fla.
1988)], the Florida Supreme Court, by a vote of six to one, affirmed a
death sentence for two brutal first-degree murders by LeCroy, who was
17 years and 10 months old when he committed the murders. The court
noted, among other things that the sentencing judge gave great weight
to LeCroy's youth but found him mentally and emotionally mature. It
also noted that Florida statutes clearly provided for some decades that
17-year-olds charged with capital crimes should be punished as adults.
Construing U.S. Supreme Court precedent, it ruled that there was no
constitutional bar to the imposition of the death penalty on those who
were 17 at the time of the capital offense.
In her lone dissent, Justice Barkett concluded that the eighth
amendment of the Federal Constitution prohibited Florida from executing
those who were under 18 at the time of the crime. Reaching out to
overturn this death sentence seems to be another clear instance of the
nominee injecting her own policy preferences for the law. It is an
unfortunate fact that 16- and 17-year-olds are committing the most
vicious of adult crimes, including much-noted murders of tourists. If a
State wishes to treat them as adults when they commit such crimes, then
the substitution of a judge's personal views for the legislature's
enactment is wrong. Not surprisingly, the U.S. Supreme Court later
confirmed that it was the majority in LeCroy, rather than Justice
Barkett, who had correctly read the Federal Constitution. (See Stanford
versus Kentucky.)
I have many other concerns about this nominee--including, for
example, her openness to pervasive quotas--and many other opinions of
hers that trouble me. These concerns are outlined in some detail in
three memoranda on Justice Barkett's cases that I would like to attach
to my remarks. Mr. President, I request unanimous consent that these
three memoranda be included in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. HATCH. Some may claim that those of us who have concerns over
this nomination have focused on a relatively small number of cases and
that this is not an appropriate way to evaluate the nominee. I have a
three-part response to this concern.
First, a large number of cases of any appellate court are, frankly,
routine, and I would expect that virtually all judges would rule
unobjectionably in most cases before them.
Second, and more importantly, if a small number of cases gives rise
to large concerns, it is appropriate to base a vote on those cases. For
example, the flagrant misuse of the Federal equal protection clause and
the Federal due process clause may have occurred in just a handful of
cases. But these two constitutional provisions are far too powerful,
far too open to picking and choosing among democratically enacted
statutes based on the policy preferences of a judge, for me to be much
comforted by unobjectionable decisions in numerous other, routine
cases. A single dissent that would sweepingly invalidate obscenity
laws, notwithstanding clear U.S. Supreme Court precedent to the
contrary, is tremendously significant for what it says about a
nominee's legal outlook in a very important area of law. And it gives
rise to doubts about whether the nominee will properly apply that
Supreme Court precedent, especially in light of other opinions that
give cause for the same concern in other contexts. A series of search
and seizure opinions, improperly hamstringing the police in significant
ways--especially in the war on drugs--has an importance beyond the mere
number of these cases. An opinion, like her partial dissent in Foster,
that would paralyze enforcement of the death penalty counts more than
scores of routine death penalty cases. Joinder in an opinion like the
Dougan dissent speaks volumes about a nominee's outlook on crime and
personal responsibility.
I could go on and on, but this leads me to my third point:
The concerns about this nominee arise from more than a handful of
cases, and they arise across numerous areas of the law, not just the
death penalty.
I therefore have concluded with regret that I cannot in good
conscience support this nomination.
I will close by noting that all of the tough-on-crime rhetoric the
President serves up means less than his actions, including selection of
judges. Placing more police officers on the street will avail us little
if judges hamstring them; construe our criminal laws in an unduly
narrow fashion; or sentence the criminals they do convict with
unwarranted sympathy for the criminal.
I urge my colleagues to review the cases and the hearing testimony
for themselves. I believe they will reach the same conclusion.
Exhibit 1
[Supreme Court of Florida, Jan. 2, 1992, Rehearing Denied April 1,
1992]
Jacob John Dougan, Appellant, Versus State of Florida, Appellee, No.
71755
Defendant was convicted in the Circuit Court, Duval County,
R. Hudson Olliff, J., of homicide. Defendant appealed. The
Supreme Court, 343 So.2d 1266, affirmed, and later, 362 So.2d
657 vacated sentence and remanded for resentencing. On
remand, defendant was again sentenced to death, and the
Supreme Court again affirmed, 398 So.2d 439. Subsequently,
the Supreme Court, 470 So.2d 697, granted defendant new
appeal, affirmed his conviction, vacated death sentence, and
remanded for resentencing hearing. On remand, defendant was
again sentenced to death. The Supreme Court held that: (1)
direction to jury to follow mandate of death penalty statute
was not error; (2) finding that aggravating circumstances
existed sufficient to warrant imposition of death penalty was
not error; (3) finding that mitigating evidence was
insufficient to warrant sentence of life imprisonment, rather
than death, was not error; and (4) death sentence was not
disproportionate.
Affirmed.
Kogan, J., concurred in the results only.
McDonald, J., dissented and filed an opinion in which Shaw,
C.J., and Barkett, J., joined.
1. Jury 33(5.1)
Trial court has broad discretion in determining if
peremptory challenges exercised by prosecutor are racially
motivated. (Per Curiam opinion of three Justices with one
Justice concurring in the result)
2. Criminal Law 731
Jury may, in its discretion, decide to grant ``jury
pardon'' in deciding defendant's guilt. (Per Curiam opinion
of three Justices with one Justice concurring in the result.)
3. Criminal Law 1206.1(2)
Death penalty statutes must restrain and guide sentencing
discretion in order to insure that death penalty is not meted
out arbitrarily and capriciously. (Per Curiam opinion of
three Justices with one Justice concurring in the result.)
4. Criminal Law 796, 1206.1(2)
Death penalty statute, and instructions and recommendation
forms based upon it, sets out clear and objective standard
for channeling jury's discretion. (Per Curiam opinion of
three Justices with one Justice concurring in the result.)
West's F.S.A. Sec. 921.141(2).
5. Criminal Law 796
Direction to jury to follow mandate of death penalty
statute in determining whether to render advisory sentence of
death or live imprisonment was not error; statute, which
provides that jury must take into consideration both
aggravating and mitigating circumstances and recommend
sentence of death if sufficient aggravating circumstances
exist and are not outweighed by sufficient mitigating
circumstances, sets out clear and objective standard, and
allowing jury to disregard statutory directions and guidance
would engender arbitrariness and capriciousness in jury
recommendations. (Per Curiam opinion of three Justices with
one Justice concurring in the result.) West's F.S.A.
Sec. 921.141(2).
6. Criminal Law 796
Standard jury instruction on nonstatutory mitigating
evidence is not ambiguous and allows jurors to consider and
weigh relevant mitigation evidence. (Per Curiam opinion of
three Justices with one Justice concurring in the result.)
7. Criminal Law 986.2(1)
Deciding whether particular mitigating circumstances have
been established and, if established, weight to be afforded
those circumstances lies with trial court, and trial court's
decision will not be reversed because appellant reaches
opposite conclusion. (Per Curiam opinion of three Justices
with one Justice concurring in the result.)
8. Homicide 357(3, 7, 11)
Aggravating factors sufficient to warrant imposition of
death penalty had been established where defendant and his
companions set out with intent to kill any white person they
came upon, defendant and his companions kidnapped and
murdered hitchhiker in heinous, atrocious and cruel manner,
defendant's killing of victim was committed in cold,
calculated, and premeditated manner, and defendant,
subsequent to murder, made several tape recordings bragging
about murder, which were mailed to victim's mother and to the
media. (Per Curiam opinion of three Justices with one Justice
concurring in the result.) West's F.S.A. Sec. 921.141(2).
9. Homicide 357(3, 4, 7, 11)
In homicide prosecution, mitigating evidence evidence, and
sentence to death, rather than life imprisonment, was
required where, although defendant participated in civil
rights activities and was active in community, social,
health, and welfare work, and codefendants who also
participated in murder had received lesser sentences,
evidence indicated that murder was committed during
kidnapping, that murder was heinous, atrocious and cruel, and
that defendant had murdered victim in cold, calculated, and
premeditated manner. (Per Curiam opinion of three Justices
with one Justice concurring in the result.) West's F.S.A.
Sec. 921.141(2).
10. Homicide 357(3, 7, 11)
In homicide prosecution, death was not disproportionate
sentence where defendant and his companions set out to murder
any white person they encountered, defendant and his
companions kidnapped hitchhiker and murdered him in heinous,
atrocious and cruel manner, defendant, as leader of group,
directed execution of kidnapping and murder in cold,
calculated, and premeditated manner, and defendant was not
mentally deficient, even though defendant had suffered life
of racial prejudice. (Per Curiam opinion of three Justices
with one Justice concurring in the result.) West's F.S.A.
Sec. 921.141(2).
____
James E. Ferguson, II of Ferguson, Stein, Watt, Wallas &
Adkins, P.A., Charlotte, N.C., for appellant.
Robert A. Butterworth, Atty. Gen. and Gary L. Printy, Asst.
Atty. Gen., Tallahassee, for appellee.
per curiam
We again review a sentence of death imposed on Jacob John
Dougan, Jr., for a homicide committed on June 17, 1974.\1\
This Court affirmed two prior death sentences, but later
vacated them and remanded for resentencing; the findings of
guilt have been affirmed.\2\
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\1\Footnotes at end of article.
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The trial judge accurately set forth the facts of this
murder in his sentencing order:
``The four defendants, Jacob John Dougan, Elwood Clark
Barclay, Dwyne Critendon, and Brad W. Evans, were part of a
group that termed itself the ``Black Liberation Army'' (BLA),
and whose apparent sole purpose was to indiscriminately kill
white people and thus start a revolution and racial war.
``Dougan was the group's unquestioned leader and it was he
who conceived the murderous plan. Apparently he did not have
to break down a wall of morality to induce Barclay,
Crittendon, and Evans to participate--but it was Dougan's
plan--and he pushed it through to murderous finality. The act
of Dougan in firing the fatal shots and his leadership were
undoubtedly reasons the jury recommended death only for him.
``The trial testimony showed that on the evening of June
17, 1974, the four defendants and William Hearn (who
testified for the State) all set out in a car armed with a
pistol and a knife with the intent to kill a ``devil''--the
``devil'' being any white person they came upon under such
advantageous circumstances that they could murder him, her,
or them.
``As they drove around Jacksonville, they made several
stops and observed a number of white persons as possible
victims, but decided the circumstances were not advantageous
and that they might be seen and/or thwarted by witnesses. At
one stop, Dougan wrote out a note--which was to be placed on
the body of the victim ultimately chosen for death.
``Eventually, the five men drove towards Jacksonville
Beach, where they picked up a white hitchhiker, 18-year-old
Stephen Anthony Orlando. Against Orlando's will and over his
protest, they drove him to an isolated trash dump, ordered
him out of the car, stabbed him repeatedly, and threw him to
the ground. As the 18-year-old youth writhed in pain and
begged for his life, Dougan put his foot on Orlando's head
and shot him twice--once in the chest and once in the ear--
killing him instantly.''
Subsequent to the murder, Dougan made several tape
recordings bragging about the murder, which were mailed to
the victim's mother as well as to the media. The following
excerpt from one of the tapes aptly illustrates the content:
The reason Stephen was only shot twice in the head was
because we had a jive pistol. It only shot twice and then it
jammed; you can tell it must have been made in America
because it wasn't worth a shit. He was stabbed in the back,
in the chest and the stomach, ah, it was beautiful. You
should have seen it. Ah, I enjoyed every minute of it. I
loved watching the blood gush from his eyes.
The jury recommended the death sentence by a vote of nine
to three. The trial court found three aggravating
circumstances and no mitigating circumstances and sentenced
Dougan to death. Dougan raises numerous points on appeal,
only some of which merit discussion.\3\
[1] The prosecutor exercised several peremptory challenges
against black prospective jurors, and Dougan now argues that
he failed to give racially neutral explanations for those
excusals. The trial court, however, has broad discretion in
determining if peremptory challenges are racially motivated.
Reed v. State, 560 So.2d 203 (Fla.), cert. denied,----U.S. --
--, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990). Our review of the
record shows no abuse of discretion in the trial court's
acceptance of the prosecutor's explanations of the peremptory
challenges. Thus, we find no merit to Dougan's first point on
appeal.
Subsection 921.141(2), Florida Statutes (1987), provides:
(2) ADVISORY SENTENCE BY THE JURY.--After hearing all the
evidence, the jury shall deliberate and render an advisory
sentence to the court, based upon the following matters:
(a) Whether sufficient aggravating circumstances exist as
enumerated in subsection (5);
(b) Whether sufficient mitigating circumstances exist which
outweigh the aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant
should be sentenced to life imprisonment or death.
The instructions and jury's recommendation form used in
this case tracked the language of the statute. During
deliberations, however, the jury asked the court if it could
recommend life imprisonment ``in the event that the jury
decides that sufficient aggravating circumstances exist to
justify a death sentence and that sufficient mitigating
circumstances do not exist.'' After conferring with the
parties, the court told the jury to answer each question on
the recommendation form ``as you deem appropriate from the
law and the evidence.'' Dougan now argues that the jury
should be allowed to recommend life imprisonment regardless
of its findings as to aggravating and mitigating
circumstances. We disagree.
[2, 3] A jury may, in its discretion, decide to grant a
``jury pardon'' in deciding a defendant's guilt. E.g., Amado
v. State, 585 So.2d 282 (Fla.1991). On the other hand,
``where discretion is afforded . . . on a matter so grave as
the determination of whether a human life should be taken or
spared, that discretion must be suitably directed and limited
so as to minimize the risk of wholly arbitrary and capricious
action.'' Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S.Ct.
2909, 2932, 49 L.Ed.2d 859 (1976). As pointed out by the
United States Supreme Court, ``there is no . . .
constitutional requirement of unfettered sentencing
discretion . . . and States are free to structure and shape
consideration of mitigating evidence `in an effort to achieve
a more rational and equitable administration of the death
penalty.''' Boyde v. California, 494 U.S. 370, 110 S.Ct.
1190, 1196, 108 L.Ed.2d 316 (1990) (quoting Franklin v.
Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d
155 (1988)). To that end, death penalty statutes must
restrain and guide the sentencing discretion to ensure ``that
the death penalty is not meted out arbitrarily and
capriciously.'' California v. Ramos, 463 U.S. 992, 999, 103
S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983). Cf. California v.
Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d 934
(1987) (``death penalty statutes [must] be structured so as
to prevent the penalty from being administered in an
arbitrary and unpredictable fashion.'').
[4] Under subsection 921.141(2) death may be the
appropriate recommendation if, and only if, at least one
statutory aggravating factor is established. After an
aggravator has been established, any mitigating circumstances
established by the evidence must be weighed against the
aggravator(s). Florida's death penalty statute, and the
instructions and recommendation forms based on it, set out a
clear and objective standard for channeling the jury's
discretion.
[5] Dougan's claim that the jury should be allowed to
disregard the statutory directions and guidance would
engender arbitrariness and capriciousness in jury
recommendations. This is improper because [i]t is no doubt
constitutionally permissible, if not constitutionally
required, for the State to insist that ``the individualized
assessment of the appropriateness of the death penalty [be] a
moral inquiry into the culpability of the defendant, and not
an emotional response to the mitigating evidence.'' Whether a
juror feels sympathy for a capital defendant is more likely
to depend on that juror's own emotions than on the actual
evidence regarding the crime and the defendant. It would be
very difficult to reconcile a rule allowing the fate of a
defendant to turn on the vagaries of particular jurors'
emotional sensitivities with our long-standing recognition
that, above all, capital sentencing must be reliable,
accurate, and nonarbitary. At the very least, nothing . . .
prevents the State from attempting to ensure reliability and
nonarbitrariness by requiring that the jury consider and give
effect to the defendant's mitigating evidence in the form of
a ``reasoned moral response,'' rather than an emotional one.
The State must not cut off full and fair consideration of
mitigating evidence; but it need not grant the jury the
choice to make the sentencing decision according to its own
whims or caprice.
Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1262-63, 108
L.Ed.2d 415 (1990) (citations omitted). Thus, we find no
error in the trial court's directing the jury to follow the
mandate of subsection 921.141(2).
[6] We also find no merit to Dougan's other arguments about
the instructions on mitigating evidence. The standard jury
instruction on nonstatutory mitigating evidence is not
ambiguous and allows jurors to consider and weigh relevant
mitigating evidence. Robinson v. State, 574 So.2d 108 (Fla.),
cert. denied, ---- U.S. ----, 112 S.Ct. 131, 116 L.Ed.2d 99
(1991). Dougan's contention that evidence of no prior
criminal history can be rebutted only by convictions is
incorrect. Walton v. State, 547 So.2d 622 (Fla. 1989), cert.
denied, 493 U.S. 1036, S.Ct. 759, 107 L.Ed.2d 775 (1990).
The trial court found that three aggravators had been
established--committed during a kidnapping; heinous,
atrocious, or cruel; and committed in a cold, calculated, and
premeditated manner. As nonstatutory mitigating evidence, the
court specifically considered Dougan's civil rights
activities, his community social, health, and welfare work,
his family and personal background, his codefendants' lesser
sentences, and the racial unrest at the time of this murder.
The court held that, on this record, the evidence did not
mitigate the penalty. Now, Dougan claims that the trial court
erred both in finding that the aggravators had been
established and in not finding that mitigators had been
established. We disagree.
[7-9] Dougan states that the mitigating evidence related to
four areas: 1) positive character traits; 2) contribution of
racial oppression to the homicide; 3) potential for
rehabilitation; and 4) inequality between his sentence and
those of his codefendants and argues that the court erred in
not finding that mitigators had been established. It is
apparent from the judge's written findings that he considered
these matters. Based on his evaluation of the evidence,
however, he decided that the facts of this case did not
support Dougan's contention that these matters constituted
mitigating circumstances. Rogers v. State, 511 So.2d 526
(Fla. 1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98
L.Ed.2d 681 (1988). Deciding whether particular mitigating
circumstances have been established and, if established, the
weight afforded it lies with the trial court, and a trial
court's decision will not be reversed because an appellant
reaches the opposite conclusion. Sireci v. State, 587 So.2d
450 (Fla. 1991); Stano v. State, 460 So.2d 890 (Fla. 1984),
cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863
(1985). We find no reversible error regarding consideration
of the evidence Dougan presented in his attempt to mitigate
his sentence.
We likewise find no error in the trial court's holding
three aggravators to have been established. The evidence
fully supports finding this murder to have been committed
during a kidnapping. The facts also set this murder apart
from the norm of killing by illustrating the victim's
suffering and Dougan's indifference to the victim's pleas and
support finding the heinous, atrocious, or cruel aggravator.
Cf. Ponticeli v. State, 593 So.2d 483 (Fla. 1991), and cases
cited therein. Finally, the planning and execution of this
murder demonstrate the heightened premeditation needed to
find it had been committed in a cold, calculated, and
premeditated manner. Cf. Cruse v. State, 588 So.2d 983 (Fla.
1991); Rogers. As discussed later, Dougan had no colorable
claim of any moral or legal justification for this killing.
[10] Turning to Dougan's final point, we disagree that
death is disproportionate in this case. There was no
suggestion that Dougan is mentally deficient. To the
contrary, he is intelligent and articulate and a leader among
men. In fact, he recruited his codefendants while teaching
them karate. He knew precisely what he was doing.
The dissent suggests that because Dougan has suffered a
life of racial prejudice and that this murder was related to
this, his sentence should be reduced to life. We do not
minimize the injustices perpetrated by our society upon the
black race. However, it must be noted that Dougan suffered
less from the racial discrimination that occurred while he
was growing up than many others of his race. Although
abandoned by his mother, he was adopted at the age of two and
one-half years by loving parents who provided him with a
stable environment. Several witnesses said that he was well
liked in high school, and he achieved the rank of Eagle
Scout. There was no evidence that he suffered any racial
discrimination not common to all of the black community.
We disagree with the dissent that this pitiless murder
should be equated with the emotional circumstances often
existent in homicides among spouses. While Dougan may have
deluded himself into thinking this murder justified, there
are certain rules by which every civilized society must live.
One of these rules must be that no one may take the life of
another indiscriminately, regardless of what that person may
perceive as a justification.
Our review must be neutral and objective. This Court
recently upheld the death penalty in the indiscriminate
killing of two blacks by a white defendant. Asay v. State,
580 So.2d 610 (Fla.), cert. denied, ---- U.S. ----, 112 S.Ct.
265, 116 L.Ed.2d 218 (1991). The circumstances of this case
merit equal punishment. To hold that death is
disproportionate here would lead to the conclusion that the
person who put the bomb in the airplane that exploded over
Lockerbie, Scotland, or any other terrorist killer should not
be sentenced to death if the crime were motivated by deep-
seated philosophical or religious justifications.
We have reviewed the other issues Dougan raises\4\ and find
no reversible error. Therefore, we affirm the sentence of
death.
It is so ordered.
OVERTON, GRIMES and HARDING, JJ., concur.
KOGAN, J., concurs in result only.
McDONALD, J., dissents with an opinion, in which SHAW,
C.J., and BARKETT, J., concur.
McDONALD, Justice, dissenting.
This case is unique; it is also a case of contrast.
Dougan's counsel describes the events as a tragic aberration
while others view them as frightening, inexcusable, and
callous. In the entire bizarre series of events leading to
and following the murder by ``an unacceptable act of violence
upon an unsuspecting white youth,'' Dougan was the leader and
the planner.
Substantial evidence was presented at the last sentencing
proceeding to assist the jury, the trial judge, and this
Court in determining the appropriate sentence. The jury
recommended death,\5\ which the trial judge imposed. He found
that the homicide was cold, calculated, and premeditated
without any pretense of moral justification, that in its
planning it was especially cruel and atrocious and in its
execution especially heinous, and that there was a kidnapping
to facilitate the crime. The trial judge either rejected
mitigating circumstances or found them to be so insignificant
that they did not outweigh the aggravating ones.
It is not our function on review to reweigh the evidence,
but, rather, to determine whether the trial judge's findings
and conclusions are supported by the record. There is
evidence to support the conclusions of the trial judge on the
aggravating factors, even though in the mind of Dougan there
was a pretense of moral justification for his acts. On the
other hand, it is our responsibility to review the totality
of the circumstances to determine whether death is
appropriate when compared to other death sentences. Adams v.
State, 412 So.2d 850 (Fla.), cert. Denied, 459 U.S. 882, 103
S.Ct. 182, 74 L.Ed.2d 148 (1982); Brown v. Wainright, 392
So.2d 1327 (Fla.), cert. Denied, 454 U.S. 1000, 102 S.Ct.
542, 70 L.Ed.2d 407 (1981). We have reduced death sentences
to life imprisonment after reviewing both the aggravating and
mitigating circumstances as shown in the record and
concluding that death is not warranted. E.g., Halliwell v.
State, 323 So.2d 557 (Fla.1975).
Dougan's mother was white and his father, whom he never
knew, was black. After Dougan's birth, his mother returned to
an all white community where she abandoned her son. Although
as much white as black, Dougan was rejected by his white
relatives and the white population. Ultimately he was adopted
by an understanding and compassionate family which also came
from a biracial background. An intelligent person, Dougan was
well educated and became a leader in the black community, but
throughout his life was confronted with a perception of
injustice in race relations. Within the black community he
was respected. He taught karate and counseled black youths.
When blacks were refused service at a lunch counter, he
participated in a sit-down strike in defiance of a court
order and was held in contempt of court therefor. This was
the only blemish, if it can be called one, on his police
record until this homicide.
The events of this difficult case occurred in tumultuous
times. During the time of the late sixties and early
seventies, there was great unrest throughout this country in
race relations. Duval County, where this homicide occurred,
did not escape and was also a place of such unrest. I mention
these facts not to minimize what transpired, but, rather, to
explain the environment in which the events took place and to
evaluate Dougan's mind-set.
The trial judge was aware of everything I have stated.
Indeed, he substantially recited these facts in his
sentencing order. His final conclusion was that the grossness
of the homicide clearly outweighed any other factor or
combination thereof which may have lessened the ultimate
penalty. The majority agrees, but I cannot.
We have said that the death penalty is reserved for those
cases where the most aggravating and least mitigating
circumstances exist.\6\ We must determine whether Dougan
belongs to that class of killers for whom the death penalty
is the appropriate punishment. In resolving that issue and
mindful of the factors set forth in section 921.141, Florida
Statutes (1973), and established case law, we must carefully
review what was done, how it was done, why it was done, and
what kind of a person did it. How the public views these
factors depends to a large extent upon the vantage point or
perception of those looking at them. Understandably, in the
eyes of the victim, or potential victims, the aggravating
factors clearly outweigh the mitigating; in the eyes of the
defendant, his friends, and most of those situated in the
circumstances of Dougan, the death penalty is not warranted
and is disproportionate to the majority of hate slayings, at
least where the victim is black and the perpetrator is white.
Even though we are aware of and sensitive to these
contrasting emotions, our review must be neutral and
objective. This case is not simply a homicide case, it is
also a social awareness case. Wrongly, but rightly in the
eyes of Dougan, this killing was effectuated to focus
attention on a chronic and pervasive illness of racial
discrimination and of hurt, sorrow, and rejection. Throughout
Dougan's life his resentment to bias and prejudice festered.
His impatience for change, for understanding, for
reconciliation matured to taking the illogical and drastic
action of murder. His frustrations, his anger, and his
obsession of injustice overcame reason.\7\ The victim was a
symbolic representative of the class causing the perceived
injustices.
In comparing what kind of person Dougan is with other
murderers in the scores of death cases that we have reviewed,
I note that few of the killers approach having the socially
redeeming values of Dougan. In comparison to Dougan's usual
constructive practices, this homicide was indeed an
aberration. He has made and, if allowed to live, can make
meaningful contributions to society.
I ask again the question, is this one of the most
aggravated and least mitigated cases reserved for the
ultimate penalty of death? When considering the totality of
the circumstances, but with compassion for and, hopefully,
understanding from the family of the victim, I think not. A
life sentence makes this penalty more proportionate to what
has existed in emotional or other racially caused homicides.
Such a sentence reduction should aid in an understanding
and at least a partial reconciliation of the wounds arising
from discordant racial relations that have permeated our
society. To a large extent, it was this disease of racial
bias and discrimination that infected an otherwise honorable
person and contributed to the perpetration of the most
horrible of crimes. An approval of the death penalty would
exacerbate rather than heal those wounds still affecting a
large segment of our society.
Accordingly, I believe that the death penalty should be
vacated and that Dougan's sentence should be reduced to life
imprisonment without eligibility for parole for twenty-five
years from the date of his incarceration for this murder.
SHAW, C.J. and BARKETT, J., concur.
____
footnotes
1. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.
2. Barclay v. State, 343 So.2d 1266 (Fla. 1977), cert.
denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978);
Barclay v. State, 362 So.2d 657 (Fla. 1978); Dougan v. State,
398 So.2d 439 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct.
367, 70 L.Ed.2d 193 (1981); Dougan v. Wainwright, 448 So.2d
1005 (Fla. 1984); Dougan v. State, 470 So.2d 697 (Fla. 1985),
cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 900
(1986).
3. Several issues have been decided adversely to Dougan's
contentions: 1) adequacy of instructions on aggravating
factors, e.g., Sochor v. State, 580 So.2d 595 (Fla.), cert.
granted, -- U.S. --, 112 S.Ct. 436, 116 L.Ed.2d 455 (1991);
2) ex post facto application of the cold, calculated, and
premeditated aggravating factor, Combs v. State, 403 So.2d
418 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258,
72 L.Ed.2d 862 (1982); and 3) diminution of the jurors' sense
of responsibility, e.g., Grossman v. State, 525 So.2d 833
(Fla. 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103
L.Ed.2d 822 (1989).
4. The remaining issues are: 1) impermissible appeal to
racial bias; 2) refusal to grant change of venue; 3) no
probable cause for the arrest; and 4) abdication of
prosecutorial function.
5. The State describes the jury's recommendation of death as
basically saying ``that Mother Theresa would get the death
penalty for organizing a plan to go out and kidnap an
innocent man, torture him and then twice shoot him in the
head.''
6. ``Death is a unique punishment in its finality and in its
total rejection of the possibility of rehabilitation. It is
proper, therefore, that the Legislature has chosen to reserve
its application to only the most aggravated and unmitigated
of most serious crimes.'' State v. Dixon, 283 So.2d 1, 7
(Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40
L.Ed.2d 295 (1974).
7. To some extent, his emotions were parallel to that of a
spouse disenchanted with marriage, full of discord and
disharmony which, because of frustration or rejection,
culminate in homicide. We seldom uphold a death penalty
involving husbands and wives or lovers, yet the emotions of
that hate-love circumstance are somewhat akin to those which
existed in this case. See, e.g., Ross v. State, 474 So.2d
1170 (Fla. 1985); Blair v. State, 406 So.2d 1103 (Fla. 1981).
However, if pecuniary gain is a dominant motive in a spousal
homicide, we have upheld it. E.g., Buenoano v. State, 527
So.2d 194 (Fla. 1988); Byrd v. State, 481 So.2d 468 (Fla.
1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2261, 90
Exhibit 2
Justice Barkett and Criminal Law
This memorandum presents opinions by Justice Barkett in the
field of criminal law that raise concerns about her
decisionmaking in this field. This memorandum generally does
not address Justice Barkett's death penalty jurisprudence,
which is the subject of a separate memorandum.\1\
---------------------------------------------------------------------------
Footnotes at end of article.
---------------------------------------------------------------------------
fourth amendment
Justice Barkett has a pattern of unduly restrictive search-
and-seizure decisions that would hamstring the police in
their battle against drugs if her views had prevailed.
Bostick v. State, 554 So.2d 1153 (Fla. 1989), rev'd, 111 S.
Ct. 2382 (1991), on remand, 593 So.2d 494 (Fla. 1992)
Two Broward County Sheriff's officers searching for persons
with illegal drugs boarded a bus going from Miami to Atlanta
during a stopover in Fort Lauderdale. They had badges and
insignia and one had a zipper pouch containing a visible
pistol. They asked to inspect the defendant's ticket and
identification. The ticket and identification matched.
``However, the two police officers persisted and explained
their presence as narcotics agents on the lookout for illegal
drugs. In pursuit of that aim, they then requested the
defendant's consent to search his luggage.'' Cocaine was
discovered in his luggage, and he was arrested and charged
with cocaine trafficking.
The trial judge determined, as a question of fact, that the
defendant consented to the search and had been informed of
his right to refuse consent. His motion to suppress was
denied, and he then pled guilty, reserving his right to
appeal the denial of the suppression motion. An appellate
court affirmed.
By a 4 to 3 vote, the Florida Supreme Court, in an opinion
by Justice Barkett, ruled that the search violated Bostick's
Fourth Amendment rights. Justice Barkett's opinion adopted a
per se rule that the police practice of routinely boarding
buses to question passengers violates the Fourth Amendment
rights of the persons questioned, and that any consent to
search is necessarily tainted by this violation. The three
dissenters rejected this per se rule; relying on U.S. Supreme
Court precedent, they instead stated that the validity of
consent was to be determined from the totality of
circumstances, and they would have upheld the conviction.
By a 6 to 3 vote, the U.S. Supreme Court, in an opinion by
Justice O'Connor, reversed Justice Barkett's ruling. Florida
v. Bostick, 111 S. Ct. 2382 (1991). The Court rejected
creation of a per se rule, and instead ruled that the
determination whether a particular encounter constitutes a
seizure must be made in the light of all the circumstances.
The Court found ``dispositive'' the same U.S. Supreme Court
precedent that the dissenters to Justice Barkett's opinion
had relied on.
On remand, the Florida Supreme Court, by a 4-3 vote, ruled
the search lawful. Justice Barkett, in dissent, concluded
that ``Bostick's consent to search was invalid as a product
of an unreasonable seizure under the specific facts of this
case.''
This case is noteworthy in several respects:
1. Justice Barkett initially adopted an overbroad per se
rule that would clearly have had the effect (including in the
specific case at hand) of vitiating freely given consent to
search and of freeing criminals.
When asked why she did not apply the totality-of-the-
circumstances test called for under U.S. Supreme Court
precedent, Justice Barkett did not answer the question.
Instead, she stated that ``search and seizure I think is one
of the most difficult areas of the law'' [135:7-8] and
suggested (despite clear per se language in her opinion) that
it was the U.S. Supreme Court that had ``interpreted'' her
opinion to create a per se rule [135:12-14].
2. Justice Barkett did not follow existing U.S. Supreme
Court precedent that both the U.S. Supreme Court and three of
her colleagues recognized as dispositive. (The fact that
three Supreme Court Justices sided with Justice Barkett does
not in any sense validate her position: they were not
obligated to adhere to Supreme Court precedent; she was.)
3. Justice Barkett found occasion to compare the police
search method at issue to methods used by ``Nazi Germany,
Soviet Russia, and Communist Cuba.''\2\
At her hearing Justice Barkett denied that she had made any
such comparison: ``Senator, I would never compare the conduct
of any of our police officers in this country to those of
Nazi Germany or Soviet Russia, and I do not think there is
any question but that had I made such a comparison, I would
not have received the support of many of the rank-and-file
officers in my State.'' [136:23-137:3]
Her opinion shows, however, that Justice Barkett clearly
did make such a comparison. The fact that she was able to
obtain the support of many police officers in her retention
campaign is beside the point (as is the number of prosecutors
and law enforcement personnel who opposed her retention).
Justice Barkett's opinion elicited a rebuke from Florida
Attorney General Bob Butterworth (a Barkett supporter). A
January 23, 1990, St. Petersburg Times article reported on a
speech he gave to the Florida Sheriffs Association:
```A pattern appears to be developing, a pattern that
should be discouraging to every law-abiding Floridian,'
Butterworth said. `During the past two or three years, the
Florida Supreme Court has begun to show itself substantially
more liberal on crime issues than the U.S. Supreme Court.'
``Butterworth said the time may be approaching when
Floridians should consider constitutional amendments so
accused criminals in Florida don't have rights that aren't
available in other states.
``Butterworth gave the sheriffs a blow-by-blow look at
three Florida Supreme Court rulings that overturned the
convictions of defendants in drug cases. Two of the three
were written by Justice Rosemary Barkett; the third was an
unsigned opinion approved by a 4-3 majority of the justices.
``One of the opinions, written by Barkett in November,
compared the searches conducted by Broward County sheriff's
deputies on commercial buses with the roving patrols and
arbitrary searches conducted in Nazi Germany, Soviet Russia
and communist Cuba.
```It is an insult to the 36,000 police officers in our
state to be likened to Nazis,' Butterworth said. `I can
assure you that the three Florida law enforcement officers
who lost their lives in the line of duty last year were not
Nazis. Such language is simply not appropriate, and we should
expect more from the highest court in this state.'''
State v. Riley, 511 So.2d 282 (Fla. 1987), rev'd, 488 U.S.
445 (1989), on remand, 549 So.2d 673 (Fla. 1989)
From a helicopter hovering 400 feet above Riley's property,
police detected marijuana growing in a greenhouse. They then
obtained a warrant to search the greenhouse, and arrested
Riley. The trial court granted Riley's motion to suppress,
but the appellate court reversed.
In a unanimous opinion by Justice Barkett, the Florida
Supreme Court ruled that the helicopter surveillance of
Riley's greenhouse violated the Fourth Amendment. In
determining that Riley had a reasonable expectation of
privacy that was invaded by the helicopter surveillance,
Justice Barkett sought to distinguish the U.S. Supreme
Court's decision in California v. Ciraolo, 476 U.S. 207
(1986). In Ciraolo, the Court had held that surveillance from
a fixed-wing aircraft flying at 1000 feet did not violate the
Fourth Amendment. According to Justice Barkett, ``We simply
cannot dismiss as irrelevant the difference between a fixed-
wing aircraft flying at 1,000 feet and a helicopter circling
and hovering at 400 feet so that its occupants can look
through an opening in a roof.'' She further stated that
``[s]urveillance by helicopter is particularly likely to
unreasonably intrude upon private activities'' and that ``the
details observed here from the vantage point of a circling
and hovering helicopter could [not] just as easily have been
discerned by any person casually flying over the area in a
fixed- wing aircraft.''
The U.S. Supreme Court reversed by a 5-4 vote. The
plurality and concurring opinions found Ciraolo
indistinguishable (as, apparently, did the authors of the
dissenting opinions, since they had also dissented in
Ciraolo). In the words of the plurality opinion: ``there is
nothing in the record or before us to suggest that
helicopters flying at 400 feet are sufficiently rare in this
country to lend substance to [Riley's] claim that he
reasonably anticipated that his greenhouse would not be
subject to observation from that altitude.'' Florida v.
Riley, 488 U.S. 445, 451-452 (1989).
On remand, the Florida Supreme Court remanded to the trial
court for further evidentiary development. Riley v. State,
549 So.2d 673 (Fla. 1989). Justice Barkett's opinion for the
court asserted, ``All nine justices of the United States
Supreme Court agreed that the record lacked evidentiary
development of Riley's claimed expectation of privacy.'' A
separate opinion took the position that Riley's Fourth
Amendment claim should be decided adversely to him, without
any further evidentiary development.
A couple aspects of this case warrant attention:
1. Justice Barkett's attempted distinction of Ciraolo is
not faithful to the rationale of Ciraolo. The question is
whether an expectation of privacy is reasonable. To determine
this, one should look, under the principle of Ciraolo, to
whether helicopter flights at an altitude of 400 feet are
legal or common. To instead compare what can be seen at 400
feet from a helicopter to what can be seen at 1000 feet from
a plane is to misapply Ciraolo.
2. Justice Barkett's suggestion on remand that all 9 U.S.
Supreme Court Justices believed that additional evidentiary
development was necessary is not accurate. Both the plurality
and the concurring opinion clearly believed that the state of
the record could be held against Riley. Ultimately, it is
probably a question of state law whether further development
should be permitted. But the fact that Justice Barkett
mischaracterized what the U.S. Supreme Court had said in
order to support her remand order is troublesome.
The White House briefing materials contain a similar
distortion: ``The United States Supreme Court narrowly
reversed on the question of allocation of the burden of proof
in showing a constitutionally unacceptable invasion of
privacy.'' [Br. at 23]
This is the second of the three cases Florida Attorney
General Butterworth cited in his January, 1990 speech as part
of a pattern of liberal criminal decisions of the Florida
Supreme Court.
Cross v. State, 560 So.2d 228 (Fla. 1990)
Three detectives spotted Cross in an Amtrak station. Based
on her monitoring of them and her lack of luggage for the
trip that she was taking, they asked if they could speak with
her. She said yes. When the name on her ticket did not match
the name on her driver's license, they asked for permission
to search her tote bag but advised her that she did not have
to consent. She consented. Inside the tote bag, the
detectives found a hard baseball-shaped object wrapped in
brown tape inside a woman's slip. Having seen cocaine
packaged in this manner on ``hundreds of occasions'' in their
combined 20 years of law enforcement experience, they then
arrested Cross. The contents of the package proved to be
cocaine. The trial judge granted Cross's motion to suppress,
but the court of appeal (ultimately) reversed.
By a vote of 5-2, the Florida Supreme Court held that
probable cause existed for the arrest. The majority opinion
cited Florida precedent holding that the observation of an
experienced policeman of circumstances associated with drugs
could provide sufficient probable cause. Justice Barkett,
dissenting, adopted the reasons stated by a dissenting judge
below, who opined that the taped package did not create
probable cause. That opinion did not acknowledge, much less
credit, the experience of the police officers that cocaine is
often packaged in that unusual manner.
The majority opinion appears clearly correct, and Justice
Barkett's dissent appears to reflect an unwarranted
reluctance to rely on the experience of police officers
(despite precedent warranting such reliance).
At her hearing, Justice Barkett stated: ``My concern in
that case, Senator, was to the quality of the evidence
presented. The conclusion of a police officer that it was his
experience that this is the way it was does not comport, in
my judgment with evidence. A simple conclusory statement does
not comport with the requisite evidence.'' [146:22-147:2]
The police officers' sworn testimony that they had seen
cocaine packaged that way ``hundreds of times'' was not
``conclusory.'' Justice Barkett is simply refusing to credit
the police officers' testimony.
Sarantopoulos v. State (Fla. Dec. 9, 1993)
Having received an anonymous tip that Sarantopoulos was
growing marijuana in his backyard, two police officers went
to his residence. They entered a neighbor's yard, and one of
the officers, standing on his tiptoes, peered over a six-foot
high wood fence and spotted marijuana plants. The police then
obtained a search warrant and arrested Sarantopoulos. The
trial court granted Sarantopoulos's motion to suppress, but
the appellate court reversed.
The Florida Supreme Court, by a 5-2 vote, held that the
search was lawful. It reasoned that Sarantopoulos lacked a
reasonable expectation of privacy in his backyard, since it
was protected from view only from those who remained on the
ground and who were unable to see over the six-foot fence.
Justice Barkett, dissenting, stated, ``I cannot believe
that American citizens sitting on porches or in their
backyards are not constitutionally protected when government
agents, acting only on an anonymous tip, climb on ladders or
stretch on tiptoes to peer over privacy fences.''
The core legal issue under U.S. Supreme Court law--which,
under Florida law, governs application of Florida's search-
and-seizure provision--is whether Sarantopoulos had a
reasonable expectation of privacy. Justice Barkett's opinion,
unlike the majority's, does not meaningfully address this
issue. Instead, it simply reflects a hostility towards what
she regards as overly intrusive law enforcement.
At her hearing, Justice Barkett said that the fact that the
search was based on an anonymous tip was ``a factor which I
found very significant here.'' [141:20] But this factor is
irrelevant to the question whether Sarantopoulos had a
reasonable expectation of privacy in the first place; it
comes into play only if he did. She also claimed that
``another element [was] whether or not the police were
lawfully in the [neighbor's] yard.'' [143:1-2] Again, that
question has nothing to do with the prior question whether
Sarantopoulos had a reasonable expectation of privacy.
State v. Wells, 539 So.2d 464 (Fla. 1989), aff'd (but
criticized), 495 U.S. 1 (1990)
Wells was stopped for speeding. When the officer smelled
alcohol on his breath, he arrested Wells for DUI. The officer
then noticed cash lying on the car's floorboard, and asked
Wells to open the car's trunk. Wells agreed to do so, but
neither he nor the officer was able to work the trunk's lock.
The officer then informed Wells that the car would be
impounded. Wells gave permission for the trunk to be forced
open and examined. The car was then transported to a
facility, and a locked suitcase was found in the trunk. The
suitcase was forced open and was found to contain a large
amount of marijuana.
By a vote of 6-1, the Florida Supreme Court, in an opinion
originally signed by Justice Barkett but later issued per
curiam, held that the search of the suitcase violated Wells'
Fourth Amendment rights. Among other things, the court held
that the search of the luggage was not permissible under an
inventory search theory. Justice Barkett construed a U.S.
Supreme Court precedent, Colorado v. Bertine, 479 U.S. 367
(1987), as ``mandat[ing] either that all containers will be
opened during an inventory search, or that no containers will
be opened. There can be no room for discretion.'' Since the
police did not have a policy specifically requiring the
opening of closed containers, the search of the suitcase was
held to violate Bertine.
The U.S. Supreme Court, while affirming the judgment of the
Florida Supreme Court, criticized Justice Barkett's reading
of Bertine: ``in forbidding uncanalized discretion to police
officers conducting inventory searches, there is no reason to
insist that they be conducted in a totally mechanical 'all or
nothing' fashion. * * * A police officer may be allowed
sufficient latitude to determine whether a particular
container should or should not be opened in light of the
nature of the search and characteristics of the container
itself. * * * The allowance of the exercise of judgment based
on concerns related to the purposes of an inventory search
does not violate the Fourth Amendment.'' Florida v. Wells,
495 U.S. 1, 4 (1990). (This opinion was joined by five
Justices; two other Justices also expressly disagreed with
Justice Barkett's reading; and no Justice defended it.)
This case illustrates Justice Barkett's inclination to
create mechanical rules that severely limit police discretion
and that turn the Fourth Amendment into a straitjacket.
The White House briefing materials note that the U.S.
Supreme Court upheld the decision in Wells, but fail to
mention the fact that the Court criticized Justice Barkett's
reasoning. [Br. at 22] The White House cites Wells and Riley
in support of the claim that Justice Barkett is ``vigilant in
upholding the rights of individuals while respecting the
critical need for swift and fair law enforcement.'' [Br. at
22]
PROSECUTORIAL DISCRETION
Foster v. State, No. 76,639 (Fla. Apr. 1, 1993)
(This case is addressed more fully in the death penalty
memorandum. Its implications for quotas are discussed in the
constitutional law memorandum. This memorandum will address
its implications for criminal law generally.)
Foster, two young women, and another man, Lanier, drove to
a deserted area where one of the women was to make some money
by having sex with Lanier. As Lanier, who was very drunk, was
disrobing, Foster suddenly began hitting him and then held a
knife to Lanier's throat and sliced his neck. Foster and the
women then dragged the still-breathing Lanier into the bushes
and covered him with branches and leaves. Foster then took a
knife and cut Lanier's spine. Foster and the women then split
the money found in Lanier's wallet.
Foster was convicted of murder and sentenced to death in
1975. On resentencing, the trial court, finding three
aggravating circumstances, again imposed the death penalty.
The Florida Supreme Court, by a 4-3 vote, rejected Foster's
claim that his death sentence was a product of racial
discrimination against black victims. (The court did remand
for resentencing on other grounds.)
Justice Barkett, dissenting from this racial discrimination
ruling, would not accept the majority's determination that
Foster's statistical evidence purporting to show that white-
victim defendants in Bay County were more likely to get the
death penalty than black-victim defendants failed to
establish a constitutional violation. (Lanier, evidently, was
white; Foster's race does not appear to be stated, but
newspaper accounts report that he is also white.) Justice
Barkett would have relied on the Florida Constitution's Equal
Protection Clause to reach a result rejected by the U.S.
Supreme Court in McCleskey v. Kemp, 481 U.S. 279 (1987),
under the federal Equal Protection Clause. In McCleskey, the
Court ruled that a capital defendant claiming a violation of
the federal Equal Protection Clause must show the existence
of purposeful discrimination and a discriminatory effect on
him. According to Justice Barkett:
(1) The McCleskey standard fails to address the problem of
``unconscious discrimination.''
(2) Statistical evidence of discriminatory impact in
capital sentencing that ``cannot be traced to blatant or
overt discrimination'' should establish a violation of
Florida's Equal Protection Clause.
(3) This statistical evidence should be construed broadly
to include not only analysis of the disposition of first-
degree murder cases, ``but also other information that could
suggest discrimination, such as the resources devoted to the
prosecution of cases involving white victims as contrasted to
those involving minority victims, and the general conduct of
a state attorney's office, including hiring practices and the
use of racial epithets and jokes.'' (Emphasis in italic.)
(4) The defendant should have the initial burden of showing
the strong likelihood that discrimination influenced the
decision to seek the death penalty. ``Such discrimination
conceivably could be based on the race of the victim or on
the race of the defendant.'' Once the initial burden has been
met, ``the burden then shifts to the State to show that the
practices in question are not racially motivated.''
In addition to the fact (addressed elsewhere) that Justice
Barkett's proposed standard would paralyze implementation of
the death penalty, there is no reason why the standard should
be limited to death penalty cases; her theory would apply
equally to robbery, rape, and all other crimes. There is
likewise no reason why Justice Barkett's standard would be
limited to cases with white victims; a killer of a male
victim, for example, could try to show that sexism pervades
the prosecutor's office. As Justice Powell said in rejecting
this standard in McCleskey: ``McCleskey's claim, taken to its
logical conclusion, throws into serious question the
principles that underlie our entire criminal justice
system.'' McCleskey, 481 U.S., at 314-315.
Justice Barkett's proposed standard would effectively
impose rigid judicial oversight of prosecutorial
decisionmaking.
STATUTORY CONSTRUCTION
State v. Bivona, 460 So.2d 469 (Fla. DCA 1984), rev'd, 496
So.2d 130 (Fla. 1986)
Bivona was arrested for shoplifting in California in June
1983. He was also charged by information with a previous bank
robbery in Florida. On Florida's request, the State of
California held him in jail pending his extradition to
Florida, which occurred in August 1983. In January 1984,
Bivona filed a motion claiming that the state had failed to
bring him to trial within the 180 days required under Florida
law. Bivona's motion counted from the time he was first
arrested in California, not from the time he was returned to
Florida. The trial judge granted the motion and dismissed the
charges against him.
Judge Barkett, then on the district court of appeals, wrote
the opinion for a divided (2-1) court affirming the dismissal
of charges. The State relied on a section of the law in
question, Rule 3.191(b)(1), that read:
``A person who is . . . incarcerated in a jail or
correctional institution outside the jurisdiction of this
State, or who is charged by indictment or information issued
or filed under the laws of this State, is not entitled to the
benefit of [the 180-day time period] until that person
returns or is returned to the jurisdiction of the court
within which the Florida charge is pending and until written
notice of this fact is filed with the court and served upon
the prosecutor.''
Noting that Bivona had cooperated in being extradited,
Judge Barkett ruled that this section ``must be interpreted
to apply [only] when a defendant is incarcerated in jails
outside the jurisdiction of this state on charges pending in
the other state.'' (Emphasis in italic.)
The Florida Supreme Court unanimously reversed. It found
the language of Rule 3.191(b)(1) to be ``without ambiguity''
and criticized Judge Barkett for ``put[ting] a gloss on it,
unwarranted by anything that appears in rule 3.191.''
Gayman v. State, 616 So.2d 17 (Fla. 1993)
Facts: Gayman was found guilty of petit theft. Because he
had two prior convictions for petit theft, the trial court
adjudicated him guilty of felony petit theft. It also
classified him as a habitual violent felony offender (under
the state habitual offender statute) based on a prior felony
conviction for aggravated battery. His sentence was enhanced
accordingly. A second petitioner, Williams, faced a similar
situation; his prior felonies were for burglary and cocaine
selling.
By a 6-1 vote, the Florida Supreme Court rejected Gayman's
and Williams' claim that enhancement of a sentence based on a
prior conviction constituted double jeopardy.
Justice Barkett, dissenting in part, opined that it was not
sufficiently clear that the Florida legislature specifically
intended the double enhancement (as a felony and as a
habitual felony offender).
Justice Barkett fails to demonstrate that the ordinary
operation of the Florida statutes would provide anything
other than double enhancement. In asserting that the Florida
legislature's intent was not sufficiently clear, Justice
Barkett is implicitly repudiating the basic principle that
legislative intent is reflected in the plain meaning of
statutes. This repudiation is a license for judicial
activism.
ANTI-LOITERING LAWS
A separate memorandum discusses the serious defects arising
from Justice Barkett's opinions that held unconstitutional
laws prohibiting loitering for the purpose of prostitution
(Wyche) and for the purpose of drug-related activity (E.L.
and Holliday). The injury that these rulings inflict on the
ability of communities to police themselves bears attention.
OBSCENITY
Justice Barkett's dubiously reasoned position that laws
against obscenity violate due process (in Stall) is discussed
in a separate memorandum. Justice Barkett uses the
hypothetical danger of misapplication of obscenity laws to
strike down provisions that safeguard the civilized life of
the community.
footnotes
\1\The case summaries in this memorandum are not intended to
discourage the reader from reviewing the opinions themselves.
Indeed, we encourage such review. In addition, the transcript
of Justice Barkett's hearing is available for review in the
minority office of the Senate Judiciary Committee.
\2\The passage in fuller context reads: ``The intrusion upon
privacy rights caused by the Broward County police is too
great for a democracy to sustain. Without doubt the
inherently transient nature of drug courier activity presents
difficult law enforcement problems. Roving patrols, random
sweeps, and arbitrary searches or seizures would go far to
eliminate such crime in this state. Nazi Germany, Soviet
Russia, and Communist Cuba have demonstrated all too
tellingly the effectiveness of such methods. Yet we are not a
state that subscribes to the notion that ends justify
means.''
____
Justice Barkett and the Death Penalty
This memorandum presents Justice Barkett's approach to the
death penalty. It is based on a review of over 300 death
penalty cases in which Justice Barkett has participated,
including every case in which she has written an opinion.\1\
---------------------------------------------------------------------------
\1\The case summaries in this memorandum are not intended to
discourage the reader from reviewing the opinions themselves.
Indeed, we encourage such review. In addition, the transcript
of Justice Barkett's hearing is available for review in the
minority office of the Senate Judiciary Committee.
---------------------------------------------------------------------------
Part I provides basic background on Florida's death penalty
statute and on applicable laws governing death penalty
proceedings. Part II examines a broad array of cases that
illustrate how Justice Barkett applies these laws. Part III
analyzes the oft-made (but little-scrutinized) claim by
Justice Barkett's supporters that she has voted to enforce
the death penalty in more than 200 cases.
At the outset, it should be made clear that Justice Barkett
has voted to uphold the death penalty on a substantial number
of occasions. This only begins the inquiry, however, for one
would expect that a judge in a state with a death penalty and
many murders committed within it will have many occasions
when he or she must uphold the death penalty. But if a
nominee exhibits a clear tendency to strain for unconvincing
escapes from imposing the death penalty in cases where it is
appropriate, that raises a concern about a judge's fidelity
to the law, no matter how many times the nominee has upheld
the death penalty in other cases. Moreover, as explained
below, if Justice Barkett's view in the Foster case had
prevailed, it is likely that the death penalty would be
effectively repealed.
I. FLORIDA DEATH PENALTY LAW
Under Florida law, Fla. Stat. Sec. 921.141, a defendant who
has been found guilty of capital murder then faces a separate
sentencing proceeding to determine whether he should be
sentenced to death or to life imprisonment. Florida is a so-
called ``weighing'' state: the death sentence is warranted if
the statutory ``aggravating circumstances'' outweigh the
``mitigating circumstances.'' Florida law expressly limits
the aggravating circumstances (or ``aggravators'') to the
following list of 11:
(a) the defendant was under sentence of imprisonment when
he committed the capital crime;
(b) the defendant was previously convicted of another
capital felony or of a felony involving use or threat of
violence;
(c) the defendant knowingly created a great risk of death
to many persons;
(d) the capital crime was committed while the defendant was
committing, or attempting to commit, or fleeing from
committing or attempting to commit, a robbery, sexual
battery, arson, burglary, kidnapping, aircraft piracy, or
bombing;
(e) the capital crime was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an escape
from custody;
(f) the capital crime was committed for pecuniary gain;
(g) the capital crime was committed to disrupt or hinder
the lawful exercise of any government function;
(h) the capital crime was especially heinous, atrocious, or
cruel;
(i) the capital crime was a homicide and was committed in a
cold, calculated, and premeditated manner without any
pretense of moral or legal justification;
(j) the victim was a law enforcement officer engaged in the
performance of his official duties; and
(k) the victim was an elected or appointed public official
engaged in the performance of his official duties, and the
motive was related to the victim's official capacity.
Fla. Stat. Sec. 921.141(5). Florida law lists the following
seven mitigating circumstances (or ``mitigators''):
(a) the defendant has no significant history of prior
criminal activity;
(b) the capital crime was committed under the influence of
extreme mental or emotional disturbance;
(c) the victim participated in the defendant's conduct or
consented to the act;
(d) the defendant was merely an accomplice whose
participation was relatively minor;
(e) the defendant acted under extreme duress or the
substantial domination of another person;
(f) the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired; and
(g) the age of the defendant at the time of the crime. Fla.
Stat. Sec. 921.141(6). In addition, under current federal
constitutional rulings, any other mitigating evidence is also
to be weighed.
The capital sentencing proceeding has two stages. In the
first stage, the jury renders an advisory sentence based on
whether sufficient aggravators exist and on whether the
mitigators outweigh the aggravators. Fla. Stat.
Sec. 921.141(2). In the second stage, the trial judge makes
these same determinations. Id. Sec. 921.141(3). But under
Florida case law, Tedder v. State, 322 So.2d 908 (Fla. 1975),
a jury's recommendation of a life sentence is to be given
great weight and can be overturned by the trial judge only if
no reasonable person could conclude that death was not
warranted.
A death sentence is entitled to automatic review by the
Florida Supreme Court. Fla. Stat. Sec. 921.141(4). Under a
1972 provision, anyone who is punished by ``life''
imprisonment may be eligible for parole after 25 years. Fla.
Stat. Sec. 775.082.
Once death-sentenced murderers have lost their direct
appeal, they may pursue postconviction relief under state law
(as well as federal postconviction relief in the federal
courts). Two basic avenues may be pursued. First, a convicted
capital murderer may file a motion for postconviction relief
in the trial court under Florida Rule of Criminal Procedure
3.850. Denial of this motion is then reviewable by the
Florida Supreme Court. Second, a convicted capital murderer
may file an original action in the Florida Supreme Court for
a writ of habeas corpus under Article V, section 3(b)(9) of
the Florida Constitution.
II. JUSTICE BARKETT'S DEATH PENALTY JURISPRUDENCE
This Part will present cases that illustrate various of the
means employed by Justice Barkett to vote against the death
penalty. These include: (A) construing aggravators
exceedingly narrowly; (B) construing mitigators very broadly;
(C) creating categorical exclusions from death penalty
eligibility; (D) subjecting the death penalty to racial
statistical analyses that would paralyze its implementation;
(E) developing procedural anomalies; and (F) failing to
provide any reason at all.
A. Construing Aggravators Exceedingly Narrowly
When aggravators are given artificially narrow
constructions, those who would face the death penalty escape
it. Many of Justice Barkett's opinions illustrate a tendency
to read the aggravators far too narrowly. For example:
Cruse v. State, 588 So.2d 983 (Fla. 1991)--
Cruse loaded an assault rifle, a shotgun, a pistol, and 180
rounds of ammunition into his car and began driving to a
shopping center. On the way, he fired the shotgun at a 14-
year-old boy who was playing basketball and then at the boy's
parents and brother. At the shopping center, he shot and
killed two shoppers who were leaving a grocery store and
wounded a third. He then shot at various other customers,
killing one and wounding another.
When Cruse heard sirens approaching, he got back in his car
and drove across the street to another shopping center. When
Officer Ronald Grogan approached in his police car, Cruse
turned, inserted a new clip into his rifle, and fired eight
times into the car, killing Officer Grogan.
Officer Gerald Johnson then entered the parking lot and
exited his car. Cruse shot at Officer Johnson and wounded him
in the leg. Cruse then headed into the parking lot, searching
for the wounded officer. When he found him, he shot Officer
Johnson several more times, killing him. As a rescue team
attempted to move Officer Grogan's car out of Cruse's line of
fire, Cruse fired several shots at them and told them to
``get away from the cop. I want the cop to die.''
Cruse then entered a store and began firing at people
trying to escape. He killed one more and wounded many others.
He then found two women hiding in the women's restroom and
held one as a hostage for several hours. In all, Cruse killed
six people and wounded 10 others.
Cruse was found guilty of, among other things, six counts
of first-degree murder. The jury recommended death on all six
counts. The trial court imposed the death penalty for the
murders of Officers Grogan and Johnson.
By a vote of 6 to 1, the Florida Supreme Court affirmed the
convictions and the death sentences. In her lone dissent,
Justice Barkett voted to reverse the convictions. In
addition, she stated that the death sentence was in any event
inappropriate for Cruse.
The basis upon which Justice Barkett would have reversed
the convictions was the prosecution's alleged failure to make
available to Cruse so-called ``Brady evidence.'' Under the
U.S. Supreme Court's ruling in Brady [v. Maryland, 373 U.S.
83 (1963)], the prosecution must provide the accused, upon
the accused's request, material evidence in its possession
that is favorable to the accused. As she stated in your
opinion, ``Evidence is material when `there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.'''
Justice Barkett would have ruled that evidence of the names
of two mental health experts whom the prosecution had
contacted should have been turned over to Cruse, and that the
failure to turn over this evidence required reversal of the
convictions and remand for a new trial. In her opinion, she
rejected the majority's opinion that this evidence was merely
cumulative. In addition, she stated, ``I do not believe that
the fact that other experts at trial expressed the same
opinion [regarding Cruse's mental state] is a pertinent part
of the inquiry of whether or not a Brady violation
occurred.''
In the second part of her dissent, Justice Barkett
concluded that even if the convictions were to be upheld, the
death sentence was in any event not warranted and should be
reduced to life. She would have found that the cold-
calculated-and-premeditated aggravator was not met. In
particular, she concluded that Cruse had the ``pretense of
moral or legal justification'' for his killings because ``the
evidence shows that Cruse was acting in response to his
delusions that people were trying to harm him.''
Justice Barkett also took the position that even apart from
what she saw as a pretense of moral or legal justification,
there was insufficient evidence of heightened premeditation
in the murders of the two police officers.
Analysis: Justice Barkett's dissent appears riddled with
flaws:
(1) Her position that it is not pertinent under Brady
whether evidence is merely cumulative conflicts with the
principle that evidence is material for purposes of Brady
only if there is a reasonable probability that disclosure of
the evidence would have led to a different result at trial.
Merely cumulative evidence is by definition not material. So
it appears that the basis upon which she voted to reverse
Cruse's convictions is clearly invalid.
(2) As the majority pointed out, the consensus of the
experts who testified was that Cruse's delusions related to a
fear that others were trying to turn him into a homosexual,
not to a fear of any physical harm. It therefore appears that
Justice Barkett's finding of a pretense of moral or legal
justification rests on a serious mischaracterization of the
evidence.
(3) What additional facts would be needed to persuade
Justice Barkett that Cruse had heightened premeditation? The
evidence of heightened premeditation was clear: With respect
to the murder of Officer Grogan, the evidence shows that when
Officer Grogan approached in his police car, Cruse turned,
inserted a new clip into his rifle, and fired eight times
into the car, killing Officer Grogan. In addition, as a
rescue team attempted to move Officer Grogan's car out of
Cruse's line of fire, Cruse fired several shots at them and
told them to ``get away from the cop. I want the cop to
die.'' With respect to the murder of Officer Johnson, the
evidence shows that when Officer Johnson entered the parking
lot and exited his car, Cruse shot at him and wounded him in
the leg. Cruse then headed into the parking lot, searching
for the wounded officer. When he found him, he shot Officer
Johnson several more times, killing him.
McKinney v. State, 579 So.2d 80 (Fla. 1991)--
A driver of a rental car was shot to death in Miami when he
stopped to ask directions. McKinney was convicted of first-
degree murder (as well as armed robbery, armed kidnapping,
and other offenses) and was sentenced to death.
The Florida Supreme Court, in an opinion by Justice
Barkett, voted 6-1 to reverse the death sentence on the
ground that the aggravators had not been sufficiently proven.
E.g.: ``While it is true that the victim was shot multiple
times, a murder is not heinous, atrocious, or cruel without
additional facts to raise the shooting to the shocking level
required by this factor.''
Analysis: Justice Barkett's determination that the only
evidence supporting the ``heinous, atrocious, or cruel''
aggravator was the number of gunshot wounds ignores the
special vulnerabilities that visitors face and the shocking
nature of the crime. Indeed, there has been a recent rash of
killings of tourists driving rental cars in Miami.
Porter v. State, 564 So.2d 1060 (Fla. 1990)--
Porter was the live-in lover of Evelyn Williams from 1985
until July 1986. Their relationship was marked by several
violent incidents, including Porter's threat to kill Williams
and her daughter. Porter left town for a few months, during
which time Williams established a relationship with another
man, Burrows.
When Porter returned to town in October 1986, Williams
refused to see him. Porter contacted Williams' mother, who
told him that Williams did not wish to see him anymore. A few
days before the murders, Williams asked to borrow a gun from
a friend; the friend declined, but the gun was later missing.
During each of the two days before the murder, Porter was
seen driving past Williams' home. Then, after drinking
heavily, Porter invaded Williams' home, shot her to death,
threatened to kill her daughter, and then killed Burrows in a
scuffle. Porter pled guilty to the two murders, and was
sentenced to death for the murder of Williams.
By a vote of 5 to 2, the Florida Supreme Court affirmed the
death sentence. Barkett, dissenting (with Kogan), opined that
in ``almost every other case where a death sentence arose
from a lover's quarrel or domestic dispute,'' the court had
reversed the death sentence, and that the heightened
premeditation aggravator had therefore not been met. She also
concluded that Porter's heavy drinking rendered the death
sentence disproportionate.
Analysis: The evidence of heightened premeditation was
clear; indeed, Porter basically stalked his victim for two
days. Justice Barkett's characterization of the murder as
arising from ``lover's quarrel or domestic dispute'' appears
inaccurate and beside the point.
Hodges v. State, 595 So.2d 929 (Fla. 1992)--
On the morning that Hodges was scheduled for a hearing on a
charge of indecent exposure, the 20-year-old clerk who had
complained of the indecent exposure was found shot to death
next to her car in her store's parking lot. Hodges was
convicted and sentenced to death. By a 6-1 vote, the Florida
Supreme Court affirmed the death sentence.
Justice Barkett, dissenting, would have ruled that the two
aggravators--witness elimination and cold, calculated, and
premeditated killing--were ``so intertwined here that they
should be considered as one'' and that, so considered, they
did not strongly outweigh the mitigators.
Analysis: The two aggravators are ``intertwined'' only in
the sense that aggravators arising out of the same murderous
episode are inevitably intertwined. Witness elimination
clearly involves a concern that the ``cold, calculated, and
premeditated'' aggravator does not.
At her hearing, Justice Barkett claimed that her dissent
followed (though it did not cite) a case called Cherry v.
State, 544 So.2d 184 (Fla. 1989). In Cherry, the court, in an
opinion by Justice Barkett, held that the aggravating factor
of murder for pecuniary gain improperly duplicated the
aggravating factor of murder during the commission of a
burglary where the sole purpose of the burglary was pecuniary
gain. The central precedent cited in Cherry, however, permits
aggravators to be counted separately where they relate to
``separate analytical concepts,'' Provence v. State, 337
So.2d 783 (Fla. 1976), which would certainly appear to be the
case in Hodges. Justice Barkett's dissent surely does not
provide an adequate basis for her conclusion.
The White House briefing materials brazenly and falsely
describe Justice Barkett's dissent in Hodges as ``another
excellent example of Justice Barkett's strict adherence to
established Florida and U.S. death penalty jurisprudence.''
[Br. at 25]
B. Construing mitigators too expansively
In many cases, Justice Barkett appears to give undue weight
to alleged mitigating evidence or to rely on such evidence to
contend that the death penalty is somehow disproportionate to
the crime. She appears too ready to adopt the view that
society, or racism, or deprivation, mitigates responsibility
for the horrific crime that the defendant has committed.
Dougan v. State, 595 So.2d 1 (Fla. 1992)--
Dougan was the leader of a group that called itself the
Black Liberation Army and that, according to the trial judge,
had as its ``apparent sole purpose . . . to indiscriminately
kill white people and thus start a revolution and a race
war.'' He conceived a plan for his group to kill a
``devil''--i.e., ``any white person they came upon under such
advantageous circumstances that they could murder him.'' One
evening in 1974, he and four other members of his group,
armed with a pistol and a knife, picked up a white
hitchhiker, drove him to a trash dump, stabbed him
repeatedly, and threw him to the ground. ``As the 18-year-old
youth writhed in pain and begged for his life, Dougan put his
foot on [the youth's] head and shot him twice--once in the
chest and once in the ear.'' Later, Dougan made several tape
recordings bragging about the murder, and mailed them to the
victim's mother as well as to the media. The following tape
excerpt was said to be illustrative of the tapes' content:
``He [the youth] was stabbed in the back, in the chest and
the stomach, ah, it was beautiful. You should have seen it.
Ah, I enjoyed every minute of it. I loved watching the blood
gush from his eyes.'' (Emphasis in italics.)
Dougan's case had been considered on the merits five
previous times by the Florida Supreme Court. The court had
affirmed two prior sentences but later vacated them and
remanded for resentencing. On the most recent resentencing,
the jury recommended death, and the trial court found three
aggravating circumstances and no mitigating circumstances and
therefore sentenced Dougan to death.
The Florida Supreme Court affirmed the death sentence. The
plurality rejected a slew of arguments, including the claim
that the death penalty was disproportionate under the
circumstances.
Justice Barkett joined a dissent written by Justice
McDonald that would have held the death penalty
disproportionate. The dissent made the following remarkable
observations:
1. ``This case is not simply a homicide case, it is also a
social awareness case. Wrongly, but rightly in the eyes of
Dougan, this killing was effectuated to focus attention on a
chronic and pervasive illness of racial discrimination and of
hurt, sorrow, and rejection. Throughout Dougan's life his
resentment to bias and prejudice festered. His impatience for
change, for understanding, for reconciliation matured to
taking the illogical and drastic action of murder. His
frustrations, his anger, and his obsession of injustice
overcame reason. The victim was a symbolic representation of
the class causing the perceived injustices.'' 595 So.2d, at
7-8 (emphasis in italics).
2. ``To some extent, [Dougan's] emotions were parallel to
that of a spouse disenchanted with marriage, full of discord
and disharmony which, because of frustration or rejection,
culminate in homicide. We seldom uphold a death penalty
involving husbands and wives or lovers, yet the emotion of
that hate-love circumstance are somewhat akin to those which
existed in this case.'' 595 So.2d at 7 n. 7.
3. ``The events of this difficult case occurred in
tumultuous times. During the time of the late sixties and
early seventies, there was great unrest throughout this
country in race relations. . . . I mention these facts not to
minimize what transpired, but, rather, to explain the
environment in which the events took place and to evaluate
Dougan's mind-set.'' 595 So.2d, at 7 (emphasis in italics).
4. ``There is evidence to support the conclusions of the
trial judge on the aggravating factors, even though in the
mind of Dougan there was a pretense of moral justification
for his acts.'' 595 So.2d, at 6 (emphasis in italics).
5. ``Understandably, in the eyes of the victim, or
potential victims, the aggravating factors clearly outweigh
the mitigating; in the eyes of the defendant, his friends,
and most of those situated in the circumstances of Dougan,
the death penalty is not warranted and is disproportionate to
the majority of hate slayings, at least where the victim is
black and the perpetrator is white. Even though we are aware
of and sensitive to these contrasting emotions, our review
must be neutral and objective.'' 595 So.2d, at 7 (emphasis in
italics). (The dissent proceeds directly from here to the
first passage quoted above.)
6. ``In comparing what kind of person Dougan is with other
murderers in the scores of death cases that we have reviewed,
I note that few of the killers approach having the socially
redeeming values of Dougan.'' 595 So.2d, at 8 (emphasis
added). (This apparently refers to the dissent's earlier
observations that Dougan was ``intelligent,'' ``well
educated,'' ``a leader in the black community,'' ``taught
karate and counseled black youths,'' and once ``participated
in a sit-down strike in defiance of a court order'' at a
lunch counter that refused service to blacks.)
Analysis: (1) The October 11, 1992, Sunshine magazine
quoted two prosecutors' responses to the dissent that Justice
Barkett joined:
``'How can they compare a cold-blooded, premeditated,
torturous crime that's motivated by racial hate and equate
that to the emotional circumstances in domestic murders?'
asks prosecutor Chuck Morton, himself a black man, after
rereading the Dougan case.
``Adds Tallahassee prosecutor Ray Markey: `To say that this
white victim was a sacrificial lamb and call it a social
awareness case--that's scary.'''
In the words of the plurality, ``While Dougan may have
deluded himself into thinking this murder justified, there
are certain rules by which every civilized society must live.
. . . To hold that death is disproportionate here would lead
to the conclusion that the person who put the bomb in the
airplane that exploded over Lockerbie, Scotland, or any other
terrorist killer should not be sentenced to death if the
crime were motivated by deep- seated philosophical or
religious justifications.'' 595 So.2d, at 6.
(2) While Justice Barkett did not author the dissent, she
signed onto it in its entirety. The fact that she would join
such an opinion speaks volumes, especially since she
regularly writes separately when she has a different view.
At her hearing, Justice Barkett stated that she had taken a
position in Dougan at one point that was ``different from the
one I took ultimately in the dissent. It is a very close
case. I cannot quarrel with a conclusion which would have
found it the other way. I cannot quarrel with the majority in
that case.'' [74:10-15]
This comment is troubling in several respects: (1) What
happens in conference is confidential. To engage in self-
serving, selective disclosure of confidences is to abuse the
process. (2) If Justice Barkett found the dissent so
persuasive that she abandoned a previously held position,
that exacerbates the concerns that Dougan raises. (3) How can
she say that she cannot quarrel with the majority? She did
quarrel with it: she dissented. If she is saying that she
cannot express a reasoned argument against the majority, then
on what basis did she dissent?
Wickham v. State, 593 So.2d 191 (Fla. 1991)--
In March 1986, Wickham was driving with family and friends
when they discovered that they were low on money and gas.
Wickham decided to obtain money through robbery. His group
tricked a passing motorist into stopping to examine their
car, and Wickham then pointed a gun at him. When the motorist
attempted to return to his car, Wickham shot him in the back,
and then again in the chest. When the victim pled for his
life, Wickham shot him twice in the head. Wickham then
rummaged through the victim's pockets and found $4.05. At
trial, the jury convicted and recommended death. The trial
judge found six aggravating circumstances and no mitigating
circumstances, and sentenced Wickham to death.
The Florida Supreme Court affirmed the death sentence by a
4 to 2 vote, with Justices Barkett and McDonald dissenting.
According to Justice Barkett's dissent, ``If the death
penalty is supposed to be reserved for the most heinous of
crimes and the most culpable of murderers, Jerry Wickham does
not seem to qualify. . . . At the time he committed this
senseless murder, Jerry Wickham was a forty-year-old mentally
deficient, socially maladjusted individual who had been
institutionalized for almost his entire life.'' 593 So.2d, at
194-195.
Analysis: (1) Wickham and Dougan, read together, are
especially revealing: Wickham was ``mentally deficient'';
Dougan was ``intelligent'' and ``well educated.'' Wickham was
``socially maladjusted''; Dougan was socially well-adjusted
(``a leader in the black community,'' ``respected,'' etc.).
Remarkably, the very qualities that Justice Barkett sees as
somehow sparing Wickham from the death penalty, when
converted into their opposites, manage to spare Dougan. (2)
Justice Barkett's tendency to find unjustified mitigation for
violent crime is reflected in the following passage from her
dissent: ``In early 1966, at the age of twenty-two, [Wickham]
was permanently discharged from the mental hospital with no
directions, no support, and no medication. Not surprisingly,
seven months later he attempted to rob a cab driver, shooting
him in the process.'' 593 So.2d, at 195 (emphasis in
italics).
Hayes v. State, 581 So.2d 121 (Fla. 1991)--
In the course of an evening consuming beer, cocaine, and
marijuana, Hayes and two friends conspired to rob and shoot a
taxicab driver in order to raise money to buy more cocaine.
Hayes volunteered to do the shooting. Carrying out their
plan, they borrowed a gun, then called a taxicab. During the
ride, Hayes shot the driver in the back of his neck and
killed him. Hayes then took forty dollars from the driver's
pockets.
Hayes was convicted of first-degree murder. Mitigating
evidence at the penalty phase showed that he had a
neglectful, abusive, and deprived upbringing, that he had
borderline intelligence, and that he had been consuming drugs
and alcohol heavily for three years. The jury recommended
death, and the trial court, finding that the aggravators--(1)
``cold, calculated, and premeditated'' and (2) for pecuniary
gain and in the course of an armed robbery--clearly
outweighed the mitigating evidence, sentenced Hayes to death.
The Florida Supreme Court, by a 5-2 vote, affirmed the
death sentence. Justice Barkett, dissenting with Kogan, would
have found that the mitigating evidence ``renders the death
sentence disproportional punishment in this case.''
Hudson v. State, 538 So.2d 829 (Fla. 1989)--
Two months after breaking up with his girlfriend, Hudson,
armed with a knife, broke into her home during the night. The
former girlfriend, having received threats from him, was
spending the night elsewhere. But her roommate was at home.
When she began screaming at him to leave, Hudson stabbed her
to death, put her body in the trunk of her car, and dumped
her in a drainage ditch in a tomato field. Hudson was
convicted and sentenced to death.
By a 6 to 1 vote, the Florida Supreme Court affirmed the
death sentence. Justice Barkett, dissenting from the
sentence, relied on the trial court's finding that Hudson
``was apparently surprised by the victim during [his]
burglarizing of [her] home'' in support of her view that the
death penalty was disproportionate to the offense.
Analysis: Anyone who breaks into a home that he believes to
be occupied should expect to encounter an occupant. It is odd
that this would somehow become mitigating.
King v. State, 514 So.2d 354 (Fla. 1987)--
While an inmate at a work-release correctional facility,
King killed an elderly woman and robbed and burned her home.
He was convicted of first-degree murder and was sentenced to
death. The conviction and death sentence were affirmed on
direct appeal, and his state postconviction petition was
denied. On federal habeas, he obtained resentencing, but was
again sentenced to death.
By a 5-2 vote, the Florida Supreme Court affirmed the
resentence of death. In dissent, Justice Barkett (with Kogan)
opined that a capital defendant must be permitted to offer at
the penalty phase so-called ``lingering doubt evidence''--
evidence that the defendant might not actually be guilty of
the crime of which he has just been convicted beyond a
reasonable doubt.
Analysis: (1) If the defendant has been found guilty beyond
a reasonable doubt, it follows that any evidence suggestive
of his innocence either has already been rejected by the jury
and the judge as not credible or would give rise, at most,
only to unreasonable or whimsical doubts. Why should evidence
that does not give rise to even a reasonable doubt of guilt
and that is not otherwise relevant in any respect be required
to be admitted in the sentencing phase as evidence of
possible innocence? (2) In Franklin v. Lynaugh, 487 U.S. 164
(1988), the U.S. Supreme Court rejected Justice Barkett's
position and made clear that it was not consistent with pre-
existing precedent. In the words of Justice O'Connor's
concurring opinion, ``Our cases do not support the
proposition that a defendant who has been found to be guilty
of a capital crime beyond a reasonable doubt has a
constitutional right to reconsideration by the sentencing
body of lingering doubts about his guilt.'' 487 U.S. at 187.
C. Categorical exclusions
Justice Barkett would define certain categories of
criminals--e.g., minors and those who are mentally retarded--
as ineligible for the death penalty, and then would construe
those categories very expansively. For example:
LeCroy v. State, 533 So.2d 750 (Fla. 1988)--
By a vote of six to one, the court affirmed a death
sentence for two brutal first-degree murders by LeCroy, who
was 17 years and ten months when he committed the murders.
The court noted, among other things, that the sentencing
judge gave great weight to LeCroy's youth but found him
mentally and emotionally mature, and that Florida statutes
specify that a child of any age charged with a capital crime
``shall be tried and handled in every respect as if he were
an adult.'' Construing U.S. Supreme Court precedent, it ruled
that there was no constitutional bar to the imposition of the
death penalty on those who were 17 at the time of the capital
offense.
Justice Barkett, dissenting from the death sentence, stated
her belief that both the Eighth Amendment of the federal
Constitution and a state constitutional provision prohibit
imposition of the death penalty on one who was a ``child'' at
the time of the crime. ``[T]he death penalty is totally
inappropriate when applied to persons who, because of their
youth, have not fully developed the ability to judge or
consider the consequences of their behavior.'' 533 So.2d, at
758. ``I am confident that most reasonable persons would
agree that the death penalty cannot be imposed on children
below a certain age. . . . In my view, that line should be
drawn where the law otherwise distinguishes `minors' from
adults''--i.e., at 18 years. Id., at 759. ``I cannot agree,
as the majority implicitly holds, that one whose maturity is
deemed legally insufficient in other respects should be
considered mature enough to be executed in the electric
chair.'' Id.
Analysis:
(1) It would seem that the existing statutes permitting
execution of those under 18, both in Florida and in other
states, are a more reliable barometer than Justice Barkett's
own subjective sense of what ``most reasonable persons would
agree.''
(2) As the majority emphasizes, the trial court found that
LeCroy's ability to judge the consequences of his behavior
was fully developed. It would seem that a State should be
able to choose to structure its determination on an
individualistic basis, rather than be required to engage in
the fiction that the moment a person turns 18, he acquires a
maturity that did not previously exist.
(3) The relevant question is not whether someone is
``mature enough to be executed'' (whatever that means);
rather, it is whether someone is mature enough to recognize
the wrong of brutally killing a human being. It is plainly
commonsensical, and surely constitutional, for the people of
a State to conclude that the degree of maturity that is
necessary to exercise sound judgment regarding voting or
marrying may be somewhat greater than the degree necessary to
recognize the wrong of brutally killing a human being.
(4) In Stanford v. Kentucky, 492 U.S. 361 (1989), the U.S.
Supreme Court later rejected her position, as it held that
there was no constitutional bar to execution of 16- and 17-
year-olds.
In her written response to written questions submitted
after her hearing, Justice Barkett stated that ``there was no
express evidence that the Florida Legislature had considered
the question'' of executing minors and that her LeCroy
dissent ``concluded that the Legislature had not sufficiently
expressed its intent to execute juveniles to satisfy the
Eighth Amendment.''
This response is unsatisfactory in at least two respects:
(1) It fails to acknowledge, much less rebut, the majority's
detailed demonstration that the Florida legislature had, for
the past 35 years, ``repeatedly reiterated the historical
rule that juveniles charged with capital crimes will be
handled in every respect as adults'' and that ``it cannot be
seriously argued that the legislature has not consciously
decided that persons seventeen years of age may be punished
as adults'' and be subject to the death penalty. (2) Justice
Barkett's written response gives the misimpression that her
dissent rests on the ground that the legislature was not
sufficiently clear. In fact, her dissent is in no way so
limited.
Hall v. State, 614 So.2d 473 (Fla. 1993)--
In 1978, Hall and another man decided to steal a car to use
in a robbery. They spotted a 7-month-pregnant woman in a
grocery store parking lot. Hall forced her into her car and
drove her to a secluded area, where Hall and the other man
raped, beat and shot her to death. Hall was convicted and
sentenced to death.
By a 5-2 vote, the Florida Supreme Court affirmed Hall's
death sentence. The court ruled in part that the trial record
supported the trial judge's conclusion that the mitigators
alleged by Hall either had not been established or were
entitled to little weight.
Justice Barkett, dissenting (with Kogan), did not agree
that the mitigators had not been established. Instead, she
would have found that Hall was mentally retarded and would
have held that execution of the mentally retarded is cruel
and unusual punishment under the Florida Constitution.
Analysis: (1) Justice Barkett relies on provisions of the
Florida Constitution to reach anti-death penalty results well
beyond what identical provisions of the federal Constitution
have been construed to require. (2) Justice Barkett is often
more ready than her colleagues to credit the defendant's
mitigating evidence.
D. Racial quotas
Foster v. State, No. 76,639 (Fla. Apr. 1, 1993)--
Foster, two young women, and another man, Lanier, drove to
a deserted area where one of the women was to make some money
by having sex with Lanier. As Lanier, who was very drunk, was
disrobing, Foster suddenly began hitting him and then held a
knife to Lanier's throat and sliced his neck. Foster and the
women then dragged the still-breathing Lanier into the bushes
and covered him with branches and leaves. Foster then took a
knife and cut Lanier's spine. Foster and the women then split
the money found in Lanier's wallet.
Foster was convicted of murder and sentenced to death in
1975. On resentencing, the trial court, finding three
aggravating circumstances, again imposed the death penalty.
The Florida Supreme Court, by a 4-3 vote, rejected Foster's
claim that his death sentence was a product of racial
discrimination against black victims. (The court did remand
for resentencing on other grounds.)
Justice Barkett, dissenting on this point, would not accept
the majority's determination that Foster's statistical
evidence purporting to show that white-victim defendants in
Bay County were more likely to get the death penalty than
black-victim defendants failed to establish a constitutional
violation. (Lanier, evidently, was white; Foster, according
to newspaper accounts, was also white.) Justice Barkett would
have relied on the Florida Constitution's Equal Protection
Clause to reach a result rejected by the U.S. Supreme Court
in McCleskey v. Kemp, 481 U.S. 279 (1987). In McCleskey, the
Court ruled that a capital defendant claiming a violation of
the federal Equal Protection Clause must show the existence
of purposeful discrimination and a discriminatory effect on
him. According to Justice Barkett:
(1) The McCleskey standard fails to address the problem of
``unconscious discrimination.''
(2) ``Statistical evidence'' of discriminatory impact in
capital sentencing that ``cannot be traced to blatant or
overt discrimination'' should establish a violation of
Florida's Equal Protection Clause.
(3) This ```statistical' evidence'' should be construed
broadly to include not only analysis of the disposition of
first-degree murder cases, ``but also other information that
could suggest discrimination, such as the resources devoted
to the prosecution of cases involving white victims as
contrasted to those involving minority victims, and the
general conduct of a state attorney's office, including
hiring practices and the use of racial epithets and jokes.''
(Emphasis in italics.)
(4) The defendant should have the initial burden of showing
the strong likelihood that discrimination influenced the
decision to seek the death penalty. ``Such discrimination
conceivably could be based on the race of the victim or on
the race of the defendant.'' Once the initial burden has been
met, ``the burden then shifts to the State to show that the
practices in question are not racially motivated.''
Analysis: (1) Justice Barkett's proposed standard would
paralyze implementation of the death penalty. (This point
should be kept in mind in considering her supporters' claims
about her death penalty record.) Under her standard, in every
capital case involving either a non-white defendant or a
white victim, the capital defendant would be able to
investigate the general practices of the state attorney's
office. A more burdensome inquiry could hardly be imagined.
(2) Indeed, as Justice Powell pointed out in his opinion in
McCleskey, there is no reason why Justice Barkett's standard
would be limited to cases with non-white defendants or white
victims. A white defendant should be able to try to show that
racial discrimination against whites infected the State's
decision. A Catholic defendant could try to show that state
attorneys told jokes about the priest and the rabbi, etc. A
female defendant (or a killer of a male victim) could try to
show that sexism pervades the prosecutor's office. (3) There
is also no reason why Justice Barkett's standard should be
limited to death penalty cases; her theory would apply
equally to robbery, rape, and all other crimes. In Justice
Powell's words, ``McCleskey's claim, taken to its logical
conclusion, throws into serious question the principles that
underlie our entire criminal justice system.'' McCleskey, 481
U.S., at 314- 315.
At her hearing, Justice Barkett stated: ``I have not
suggested in this opinion or anywhere else that statistics is
the be-all and end-all of the inquiry. I do believe that
perhaps statistics may be something that could be submitted
to be included in an offer of proof on this question, but I
clearly do not believe that some questions can be resolved
only by use of statistical analysis.'' [157:1-6] How this
statement can be reconciled with her opinion--in which she
clearly embraces reliance on statistical evidence--is not
clear.
E. Developing procedural anomalies
Justice Barkett has taken a number of positions that would
place substantial procedural roadblocks in the way of the
death penalty; she has taken other positions that give
capital defendants special advantages. In the postconviction
context, where the doctrine of procedural bar enables courts
to dispose of claims that were not timely raised or that were
otherwise not properly preserved, Justice Barkett has
frequently declined to apply the law of procedural bar as
uniformly as the court and has instead created ad hoc
exceptions. See, e.g., Bundy v. State, 538 So.2d 445 (Fla.
1989); Francis v. Dugger, 581 So.2d 583 (Fla. 1991); Foster
v. State, 518 So.2d 901 (Fla. 1987); Johnson v. State, 536
So.2d 1009 (Fla. 1988); Jones v. State, 533 So.2d 290 (Fla.
1988).
Grossman v. State, 525 So.2d 833 (Fla. 1988)--
Grossman, on probation following a prison term, drove with
a companion to a wooded area to shoot a handgun that he had
recently stolen from a home. When a wildlife officer came
upon them, she took possession of Grossman's shotgun.
Grossman pleaded with her not to turn him in, since he would
be returned to prison for violating the terms of his
probation. When the officer refused his plea, Grossman beat
her with a large flashlight. After she fired her weapon in
self-defense, Grossman wrestled the weapon away and shot her
in the back of the head, killing her. Grossman was convicted
and sentenced to death.
By a 6-1 vote, the Florida Supreme Court affirmed the death
sentence. Justice Barkett, dissenting, would have continued
to adhere to a view concededly rejected by numerous Florida
Supreme Court decisions: namely, that the U.S. Supreme Court
decision in Caldwell v. Mississippi, 472 U.S. 320 (1985)--
which held that it was error for a prosecutor to urge a
capital sentencing jury not to view itself as determining
whether the defendant would die, since the correctness of the
death sentence would be reviewed on appeal--applied under
Florida's scheme to the advisory jury as well as to the
sentencing judge. Justice Barkett also would not have
permitted written findings in support of sentencing to be
made three months after sentencing, where no specific oral
findings were made at the time that the death sentence was
imposed. She therefore would have required that the sentence
be reduced to life.
Burr v. State, 518 So.2d 903 (Fla. 1987)--
Burr was convicted of first-degree murder and robbery with
a firearm and was sentenced to death. His conviction and
sentence were affirmed on direct appeal. Following the
signing of a death warrant, he filed a motion for
postconviction relief, which was denied by the trial court.
By a 6-1 vote, the Florida Supreme Court affirmed the
denial of relief. Justice Barkett, dissenting, would have
decided for Burr based on an issue that she conceded had not
even been raised by Burr--the consideration of collateral
crimes evidence during the sentencing phase.
At her hearing, Justice Barkett claimed that ``the United
States Supreme Court reversed Burr on the same basis upon
which I dissented.'' [95:9-10] This claim is not accurate:
The U.S. Supreme Court GVRed--granted, vacated and remanded--
Burr in light of its intervening decision in a case called
Johnson v. Mississippi, where the Court ruled that a death
sentence could not be based on a conviction that is no longer
valid. Justice Barkett's dissent is not so limited and would
appear to challenge the admission of any collateral crimes
evidence.
Stewart v. State, 549 So.2d 171 (Fla. 1989)--
Stewart, hitchhiking, was a passenger in a car. When the
driver stopped to drop him off, Stewart, struck her on the
head with the butt of a gun, shot her and shot and killed her
companion, forced them from the car, and drove away. The
trial judge, following the jury's recommendation, sentenced
Stewart to death. The trial court made detailed oral findings
that were dictated into the record; it failed, however, to
provide separate written findings in support of its sentence.
The Florida Supreme Court, by a 5-2 vote, remanded so that
the trial court could provide written findings, as required
by an intervening decision construing state law. Justice
Barkett, dissenting with Kogan, would have overruled a recent
precedent by holding that a trial court's failure to provide
contemporaneous written findings required that a death
sentence be converted to life.
Hamblen v. Dugger, 546 So.2d 1039 (Fla. 1989)--
Hamblen pled guilty to first-degree murder and waived his
right to have a jury consider whether he should be executed.
At his sentencing hearing, he presented no mitigating
evidence and agreed with the prosecutor's recommendation of
death. The trial judge sentenced him to death. The sentence
was affirmed on direct appeal (with Justice Barkett
dissenting).
The capital collateral representative then filed a habeas
petition on Hamblen's behalf. The Florida Supreme Court, by a
vote of 6-1, denied the petition. Justice Barkett,
dissenting, opined that a court that ``gives a defendant the
`right' to waive presentation of mitigating factors'' cannot
perform its required function of weighing the aggravating and
mitigating factors.
Woods v. State, 531 So.2d 79 (Fla. 1988)--
Justice Barkett opined that she would require a court to
entertain any claim made by a condemned prisoner, no matter
how dilatory the assertion of the claim: ``a court must
consider any point raised by a condemned prisoner as a reason
why the death penalty should not be imposed.''
Analysis: One of the problems in state administration of
the death penalty has been the deliberate 11th-hour filing of
claims by death row inmates whose sentences have been validly
imposed and upheld both on direct and collateral appeal. At
some reasonable point, a State must be permitted to prevent
abuse of its criminal justice system. Otherwise, a death row
inmate could delay his execution forever simply by filing
another claim. Justice Barkett's dissent does not seem at all
attentive to the legitimate interests of the State.
F. Providing no reason
In some 50 or so cases, Justice Barkett has provided no
explanation--or at times only a conclusory statement--when
she has refused simply to join the opinion of the court. In a
number of these cases, she actually voted to grant relief.
For example:
White v. State, 559 So.2d 1097 (Fla. 1990)--
White was convicted of robbing a small grocery store and
shooting to death a customer. His conviction and death
sentence were affirmed on appeal. In a petition for
postconviction relief, White claimed, among other things,
that his counsel had been ineffective. The Florida Supreme
Court, by a vote of 5 to 2, affirmed the denial of his
petition; in particular, the court addressed in detail, and
found meritless, White's claim of ineffective assistance of
counsel.
Justice Barkett's entire dissent reads as follows: ``I
cannot concur in the majority's conclusion that appellant
received a fair trial with effective assistance of counsel.''
When asked at her hearing why she did not provide any
further explanation for overturning a sentence recommended by
the jury, imposed by the trial judge, affirmed on direct
appeal, and upheld by the trial judge and the majority of her
colleagues in postconviction proceedings, Justice Barkett
stated: ``[O]ur court is an extremely busy court. . . . I
would have liked to have had, I am sure, the opportunity to
have expanded here. But time constraints sometimes preclude
you from amplifying any further than that.'' [87:8-17] This
response does not adequately explain why Justice Barkett
failed even to identify the primary reasons that led her to
dissent.
Engle v. Florida, 510 So.2d 881 (Fla. 1987)--
Engle and another man robbed $67 from a convenience store,
took the female cashier from the store, and strangled and
stabbed her to death. A four-inch laceration, likely caused
by a fist, was found in the interior of the victim's vagina.
The jury recommended life, but the trial judge, finding four
aggravators and no mitigators, sentenced Engle to death.
By a vote of 6-1, the Florida Supreme Court ruled that
there was not a reasonable basis for the jury's life
recommendation and affirmed the death sentence. Justice
Barkett, in a two-sentence dissent, stated, without any
further explanation, her belief that ``the record adequately
supports the jury's recommendation of life imprisonment.''
See also Kennedy v. Wainwright, 483 So.2d 424 (Fla. 1986);
Thomas v. Wainwright, 486 So.2d 574 (Fla. 1986); Thomas v.
Wainwright, 486 So.2d 577 (Fla. 1986); Funchess v. State, 487
So.2d 295 (Fla. 1986); Spaziano v. State, 570 So.2d 289 (Fla.
1990); Swafford v. Dugger, 569 So.2d 1264 (Fla. 1990); Turner
v. State, 530 So.2d 45 (Fla. 1987).
G. Other noteworthy cases Torres-Arboledo v. State, 524 So.2d 403 (Fla.
1988)--
Torres-Arboledo, an illegal alien from Colombia, rounded up
two other men and went to a car body shop, where they
attempted to take the owner's gold chain. When the owner
resisted, Torres-Arboledo shot him to death. The jury
recommended a life sentence, but the trial judge, finding two
aggravators and no mitigators, overrode it and imposed death.
The Florida Supreme Court, by a 6-1 vote, affirmed the
death sentence. Justice Barkett, in a three-sentence dissent,
opined that the standard for overriding a jury life
recommendation had not been met: ``In light of the totality
of the circumstances presented, it simply cannot be said that
no reasonable jury could have recommended life.''
In a number of other cases, Justice Barkett has been far
more ready than her colleagues to find that a trial judge's
override of a jury's life recommendation was not warranted.
See, e.g., Routly v. Wainwright, 590 So.2d 397 (Fla. 1991);
Johnson v. State, 536 So.2d 1009 (Fla. 1988).
Swafford v. State, 533 So.2d 270 (Fla. 1988)
Facts: The body of a female gas station attendant was found
in a wooded area by a dirt road some miles from where she
worked. She had been sexually battered and shot nine times,
twice in the head. Swafford was convicted and sentenced to
death. At his trial, evidence included testimony regarding an
incident that took place two months after the murder: A
witness, Johnson, testified that Swafford suggested that they
``go get some women'' and proceeded to say that ``we'll do
anything we want to her'' and then ``I'll shoot her in the
head twice.'' In response to Johnson's question whether that
wouldn't bother him, Swafford said that ``it does for a
while, you know, you just get used to it.'' Swafford then
proceeded to target a victim and draw his gun, but Johnson
ended the enterprise.
By a vote of 5-2, the Florida Supreme Court affirmed the
death sentence. The majority held that Johnson's ``other
acts'' evidence was admissible under the state counterpart to
Rule 404(2) of the Federal Rules of Evidence as evidence of
the meaning of Swafford's statement that ``you just get used
to it,'' and that this statement, in context, was relevant to
establishing his crime two months before.
Justice Barkett, dissenting, asserted that the ``only
relevance of this testimony was to establish the criminal
propensity and character of Swafford'' and that it should
therefore have been excluded under Rule 404(2).
Analysis: The majority's analysis is sound. While one might
question how probative Swafford's statement was, Justice
Barkett is wrong when she says its ``only relevance'' is to
propensity and character.
III. CLAIMS REGARDING JUSTICE BARKETT'S PRO-DEATH PENALTY VOTES
Justice Barkett's supporters have routinely claimed that
she has voted to enforce the death penalty in more than 200
cases. The White House has made available a list of 275
supposed such cases. Here is a statement made by Senator
Hatch at Justice Barkett's hearing in response to these
statistical claims:
``The White House and other supporters of Justice Barkett's
nomination have made statistical claims regarding her death
penalty record in an effort to rebut charges that she is soft
on the death penalty. In support of these statistical claims,
the White House has produced a lengthy table of her death
penalty rulings. I would like to respond to these claims.
``Let me say at the outset that I believe that judges
should be judged by the quality of their legal reasoning and
by their fidelity to the law. A careful examination of
particular opinions is the best measure of these qualities.
It is precisely such an examination that I have conducted and
hope to continue at this hearing. By contrast, because the
craft of judging lies foremost in reasoning and not in
results, broad statistical compilations of results often
obscure far more than they clarify.
``Unfortunately, the White House's statistics suffer from
more than the usual deficiencies. In the first place, the
table of death penalty cases contains pervasive
doublecounting. In particular, where (as routinely happens)
the Florida supreme court addresses both a Rule 3.850
postconviction petition and a habeas petition in the same
case, the White House counts this case as two cases. This
doublecounting has the predictable effect of padding the list
of cases in which the White House says that Justice Barkett
has voted to enforce the death penalty. Even more remarkably,
it has the perverse effect of including in this list of
supposed votes to enforce the death penalty numerous cases in
which Justice Barkett has in fact voted to grant relief to
the petitioning convicted murderer.
``Second, the White House's list of cases in which Justice
Barkett ``has voted with the majority'' is not limited to
those cases in which she has been part of the majority. It
includes, for example, a substantial number of cases in which
she has refused to join the majority and has instead either
dissented in part or relied on grounds significantly more
adverse to the death penalty. It also includes a very large
number of cases in which, without offering any explanation,
she has merely concurred in the result.
``Thus, for example, a case such as Foster v. State--in
which Justice Barkett, in partial dissent, takes a position
that would virtually paralyze implementation of the death
penalty--is listed by the White House as a case in which
Justice Barkett and the majority are in agreement. [Case 91
on White House list] Other examples abound. For example,
Melendez v. State [498 So.2d 1258 (Fla. 1986)]--# 576 on the
White House list--is identified as a case in which the
majority and Justice Barkett were in agreement even though
Justice Barkett, writing separately in that case, opined that
she ``believe[d] that the evidence does not rise to the level
of certainty that should support imposition of the death
penalty.'' Likewise, if one starts running through the list
chronologically, in three of the very first cases [Kennedy v.
Wainwright, 483 So.2d 424 (Fla. 1986) (#625 on list), Adams
v. Wainwright, 484 So.2d 1211 (Fla. 1986) (#624 on list), and
Thomas v. Wainwright, 486 So.2d 574 (Fla. 1986) (#621 on
list)], Justice Barkett voted to stay the petitioner's
execution and the majority did not, but the White House fails
to identify this disagreement.
``A third basic flaw in the White House's statistical
analysis is that the White House fails to compile, much less
analyze, case histories of death-sentenced convicts. It is
not at all unusual for a death-sentenced murderer to make
numerous passes through the court system. This point is shown
by the fact that the set of 275 occasions on which the White
House says that Justice Barkett has voted to enforce the
death penalty comprises well under 200 separate convicted
murderers, many or most of whom will make yet more passes at
escaping their sentence. In this regard, it bears mention
that of these fewer than 200 murderers, Justice Barkett would
have granted relief, even beyond what her court had elsewhere
granted or what her positions in yet other cases might
dictate, to some one-third of them somewhere along the line.
``The White House also makes certain statistical claims
regarding Justice Barkett's death penalty cases and the U.S.
Supreme Court. It states, for example, that ``on eight
occasions since 1987, Justice Barkett has voted to impose the
death penalty in cases where a majority of the U.S. Supreme
Court has voted to vacate that punishment.'' But the White
House fails to make clear a number of relevant matters:
```In none of these cases did the U.S. Supreme Court rule
that the death sentence could not be imposed or even that
resentencing was necessary.
```Indeed, only one of these eight cases was even argued
before the Court. In the other seven cases, the Supreme Court
used the procedural device known as a GVR --grant, vacate,
and remand--to enable the state supreme court to consider the
possible impact of an intervening U.S. Supreme Court
decision. The Supreme Court liberally uses this GVR device,
especially in death cases. A GVR does not necessarily reflect
disagreement with the state supreme court's ruling; rather,
it simply gives the state supreme court the opportunity to
consider the possible application of the intervening U.S.
Supreme Court decision.
```In the one case that was decided on the merits, the
Supreme Court remanded so that the Florida supreme court
could make the basis for its ruling more clear. In seven of
these eight cases, the death penalty was imposed on remand
from the Supreme Court. In short, these cases provide no
meaningful basis for a comparison of how Justice Barkett
stands in relation to the Supreme Court on the death
penalty.'
``The White House also asserts that `in four cases in which
Justice Barkett dissented from a death sentence and that case
was reviewed by the U.S. Supreme Court, the Court agreed with
Justice Barkett, and not the Florida Supreme Court majority.'
In fact, however, the Supreme Court did not agree with the
legal position that Justice Barkett took in any of the four
cases. Instead, it relied on other grounds in summarily
vacating the death sentence in one of the cases and issuing
GVRs in light of intervening precedent in the other three.
``For these same reasons, the White House's claim regarding
the `nine instances in which the U.S. Supreme Court has
reached a conclusion different from Rosemary Barkett's in a
capital case' misses the mark. I must also note that the
White House fails to consider those cases from other
jurisdictions in which the U.S. Supreme Court has rejected
the very positions taken by Justice Barkett in other cases.
``The White House also fails to observe a striking fact
that the statistics do show. Even if one accepts the White
House's loaded numbers, these numbers show that there have
been more than one hundred occasions on which Justice Barkett
has dissented from the Florida Supreme Court's decision to
enforce the death penalty. By contrast, there has not been
one occasion--not one single occasion--on which Justice
Barkett has been in dissent from a majority decision to grant
relief to a convicted capital murderer. This drastic
disparity makes all the more telling the White House's
refusal to compile--or at least to disclose--data on any
cases in which even a single justice has taken a position
that is more favorable to the convicted murderer than Justice
Barkett's.
``I emphasize again that I believe that a careful reading
of a judge's cases is the best means of examining that
judge's record.''
Justice Barkett's Constitutional Decisionmaking
Florida chief justice Rosemary Barkett, who has been
nominated for a seat on the Eleventh Circuit Court of
Appeals, has a record of constitutional decisionmaking that
merits careful scrutiny. This memorandum will discuss some
opinions of hers that raise serious concerns. In particular,
it will focus on her constitutional decisionmaking in such
areas as equal protection, substantive due process, the First
Amendment, obscenity, and quotas.
As one would expect with any judge who has decided a large
number of cases, Justice Barkett has, of course, written a
number of opinions that are unobjectionable or soundly
reasoned. But the broader question is whether her judicial
record reflects a strong commitment to apply the Constitution
and laws as written, or whether it instead reflects an
inclination to impose her own policy outlook in the guise of
judging.\1\
---------------------------------------------------------------------------
\1\ The case summaries in this memorandum are not intended to
discourage the reader from reviewing the opinions themselves.
Indeed, we encourage such review. In addition, the transcript
of Justice Barkett's hearing is available for review in the
minority office of the Senate Judiciary Committee.
---------------------------------------------------------------------------
i. rational-basis review under the equal protection clause
The U.S. Supreme Court's equal protection jurisprudence is
well-settled: ``this Court's cases are clear that, unless a
classification warrants some form of heightened review
because it jeopardizes exercise of a fundamental right or
categorizes on the basis of an inherently suspect
characteristic, the Equal Protection Clause requires only
that the classification rationally further a legitimate state
interest.'' Nordlinger v. Hahn, 112 S. Ct. 2326, 2331-2332
(1992).
How this rational-basis test is to be applied is also well-
settled. As Justice Blackmun reiterated in Nordlinger (for an
8-Justice majority), ``the Equal Protection Clause is
satisfied so long as there is a plausible policy reason for
the classification, the legislative facts on which the
classification is apparently based rationally may have been
considered to be true by the government decisionmaker, and
the relationship of the classification to its goal is not so
attenuated as to render the distinction arbitrary or
irrational.'' Nordlinger v. Hahn, 112 S. Ct. 2326, 2332
(1992) (citations omitted).
The Supreme Court, citing cases going back to 1970,
reiterated these basic principles earlier this year in
another 8-Justice opinion (written by Justice Thomas):
``[E]qual protection is not a license for courts to judge
the wisdom, fairness, or logic of legislative choices. In
areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines
nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if there is a
reasonably conceivable state of facts that could provide a
rational basis for the classification. . . . This standard
of review is a paradigm of judicial restraint. . . . On
rational basis-review, a classification in a statute . . .
comes to us bearing a strong presumption of the
legislative classification have the burden `to negative
every conceivable basis which might support it.'''
FCC v. Beach Communications, 113 S. Ct. 2096, 2101-2102
(1993) (emphasis in italic) (case citations omitted).
Examination of Justice Barkett's cases calls into serious
question whether she has been faithful to this ``paradigm of
judicial restraint.'' In the case of University of Miami v.
Echarte, 618 So. 2d 189 (Fla. 1993), the Florida Supreme
Court ruled that a statutory monetary cap on noneconomic
damages in medical malpractice cases did not violate Equal
Protection. The court cited at length the legislature's
concern over the ``financial crisis in the medical liability
insurance industry''; its concern that providers of medical
care would ``be unable to purchase liability insurance, and
many injured persons [would] therefore be unable to recover
damages''; its recognition that the size and increasing
frequency of very large claims was a cause of these problems;
and its concern that damages for noneconomic losses were
being awarded arbitrarily and irrationally.
In dissent, Justice Barkett (among other grounds) her view
that the statutory caps ``violate[ ] . . . the equal
protection clauses of the Florida and United States
Constitutions.'' (Emphasis in italic.) In her view, the caps
could not survive even minimal rational-basis scrutiny. Her
application of the rational basis test appears to differ
fundamentally from the settled test set forth by the U.S.
Supreme Court. Justice Barkett does not cite any federal
precedent. Instead, she makes a startling assertion: ``I fail
to see how singling out the most seriously injured medical
malpractice victims for less than full recovery bears any
rational relationship to the Legislature's stated goal of
alleviating the financial crisis in the medical liability
insurance industry.'' In fact, the rational relationship
between the means and the goal appears self-evident and was
clearly spelled out by the legislature. Thus, it is difficult
to avoid the conclusion that instead of giving the
legislation the ``strong presumption of validity'' to which
it is entitled, Justice Barkett is substituting her own
policy preferences in place of those of the legislature
through the purported application of rational-basis review.
The point here is not the merits, or lack of merits, of
caps on noneconomic damages as a matter of policy. The point,
rather, is that under clear Supreme Court precedent issues
like this are left broadly to the legislatures. It is a cause
of great concern that Justice Barkett, first, would rely on
the federal Equal Protection Clause (since state law grounds,
under her view, sufficed to reach the same result), and,
second, would fail to follow clear and longstanding Supreme
Court precedent in applying that clause. More generally, one
must be very concerned that a judge who would so casually
invoke the federal Equal Protection Clause to invalidate
legislative action in this area is very ready to continue to
misuse the federal Equal Protection Clause--a very powerful
tool if so misused--to impose her policy preferences instead
of applying the law.
This concern has very broad ramifications. For example,
Congress might well enact damage caps as part of product
liability reform or as part of medical liability reform under
a health care bill. Because the U.S. Supreme Court has held
that the equal protection principle applies to the federal
government under the Fifth Amendment's due process clause,
the logic of Justice Barkett's position would seem almost
certainly to lead to these caps being struck down.
At her hearing Justice Barkett said that Echarte was
``primarily'' a case implicating the state constitutional
right of access to the courts. [47:9-48:3] ``I grant you that
I used the term `Federal Constitution,' but . . . the
analysis is totally using Florida cases under a Florida
system.'' [48:12-15] She ultimately conceded that she should
not have invoked the federal equal protection clause: ``The
only reaching out was including the phrase `Federal
Constitution,' I should not have done that.'' [50:12-14]
Justice Barkett's response heightens the concern that she
invokes the federal Constitution in a cavalier and clearly
erroneous manner. The fact that she cited only Florida cases
emphasizes, rather than assuages, this concern.
Another Equal Protection case that raises similar concerns
is Shriners Hospitals v. Zrillic, 563 So.2d 64 (Fla. 1990).
There, Justice Barkett wrote the opinion for the court
striking down, on numerous bases, a Florida statute that
permitted a direct heir to cancel a gift to charity made in a
will when that will was executed less than six months before
the testator's death. The purpose of the statute was to guard
against undue influence on charitable gift givers. One of the
bases on which she struck down the statute was the federal
Equal Protection Clause.
Again, the concern here is not with the wisdom, or lack of
wisdom, of the statute, but rather with the reasoning by
which she used the federal Equal Protection clause to
invalidate it. In that case, she stated,
``Equal protection analysis requires that classifications
be neither too narrow nor too broad to achieve the desired
end. Such underinclusive or overinclusive classifications
fail to meet even the minimal standards of the rational basis
test.''
Her opinion proceeds to hold that the statute is
underinclusive because it protects against only one type of
undue influence exerted on testators (that exerted by
charities), and that it is overinclusive because it would
render voidable many intentional bequests not tainted by
undue influence. Her opinion further states that the six-
month period set forth in the statute is irrational; in her
words; ``[t]here is no rational distinction to automatically
void a devise upon request when the testator survives the
execution of a will by five months and twenty-eight days, but
not when the testator survives a few days longer.''
Justice Barkett's opinion cites no federal authority for
the proposition that the rational basis test for the federal
equal protection clause forbids both underinclusive and
overinclusive classifications. Nor could she, for this
proposition appears plainly incorrect: the U.S. Supreme Court
has long held that a classification does not violate Equal
Protection simply because it ``is to some extent
underinclusive and overinclusive.'' Vince v. Bradley, 440
U.S. 93, 108 (1979). As Justice Douglas stated in an opinion
for the Court more than 40 years ago, ``It is no requirement
of equal protection that all evils of the same genus be
eradicated or none at all.'' Railway Express Agency v. New
York, 336 U.S. 106, 110 (1949). The Court restated this basic
principle just last year: ``[T]he legislature must be allowed
leeway to approach a perceived problem incrementally. . . .
`[It] may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the
legislative mind. The legislature may select one phase of one
field and apply a remedy there, neglecting the others.''' FCC
v. Beach Communications, 113 S. Ct., at 2102 (quoting
Williamson v. Less Optical, 348 U.S. 483 (1955)).
Justice Barkett's ruling that the six-month period is
irrational simply because it produces different results when
the testator survives 5 months and 28 days versus 6 months
and 1 day is also deeply troubling. A similar objection could
be voiced against every time limit in the law. But in such
matters the legislature ``ha[s] to draw the line somewhere,''
Beach Communications, 113 S. Ct., at 2102, and when it does
so, the ``restraints on judicial review have added force,
``id.--restraints ignored by Justice Barkett in her opinion
in this case.
Again, this case goes very far towards
transforming rational-basis scrutiny into strict scrutiny.
Indeed, if applied consistently, there are few laws that
could survive the test that Justice Barkett sets forth.
(For example, a law that terminates welfare benefits after
two years would be clearly susceptible to invalidation
under Justice Barkett's equal protection analysis.) Of
equal concern is the prospect that the test would not be
applied consistently, but would be used arbitrarily and
selectively to strike down particular laws that one
considers unsound.
As with Echarte, Justice Barkett asserted that ``the thrust
of that [Zrillic] opinion again was grounded in the Florida
Constitution.'' [53:19-20] ``[E]qual protection . . . is
really not at all the focus which concerned me in Zrillic.''
[123:3-6] [Even though she specifically invoked the federal
equal protection clause, she said that ``when I am thinking
equal protection, generally I am thinking in terms of the
prior case law of my own court in my own State.'' [53:25-
54:2] Why, then, did she invoke the federal equal protection
clause? Again, her response reflects an alarmingly cavalier
attitude towards constitutional interpretation.
Indeed, her use of the federal Equal Protection Clause in
Echarte and Zrillic is all the more striking in light of her
partial dissent in Foster v. State (discussed more fully
below and in other memoranda). There, Justice Barkett
recognized that the U.S. Supreme Court decision in McCleskey
v. Kemp foreclosed her from using the federal Equal
Protection Clause as the basis for a statistical attack on
the death penalty, so she instead relied solely on the
Florida constitution's counterpart.
It must be noted that the fact that Justice Barkett had
available sufficient state law grounds makes all the more
troubling her invocation of federal equal protection: not
only is she making bad federal constitutional law (which
activist judges in other courts might later rely on), but she
is also, in effect, immunizing her ruling from U.S. Supreme
Court review (since the existence of sufficient state law
grounds deprives that Court of Jurisdiction).
The danger of unprincipled, result-oriented decisionmaking
that results from this misstatement of Equal Protection
principles can perhaps be illustrated by comparing Justice
Barkett's opinion in this Zrillic case to her dissent in
LeCroy v. State, 533 So.2d 750 (Fla. 1988). In LeCroy, the
six other Justices voted to affirm the death sentence for a
murderer who was 17 years and 10 months old at the time that
he committed two brutal first-degree murders. In her lone
dissent, Justice Barkett took the position that the Eighth
Amendment prohibits the execution of a person who was under
18 at the time of his offense. In short, she took the view
that the Constitution imposed a bright-line age minimum of 18
for offenses that can result in the death penalty. (The U.S.
Supreme Court subsequently rejected the position that she
took.)
For present purposes, it is revealing to apply the
methodology of her Shriners opinion to the position that she
took in LeCroy. Applying that Shriners methodology, one would
say that a bright-line age minimum of 18 is both
underinclusive and overinclusive. It is underinclusive
because it fails to protect from capital punishment those
persons over 18 who (in the language of her LeCroy dissent)
``have not fully developed the ability to judge or consider
the consequence of their behavior.'' It is overinclusive
because it does protect those under 18 who have in fact fully
developed their deliberative faculties. Moreover, her
Shriners methodology would appear to dictate the conclusion
that the 18-year bright line is simply irrational, since it
would exempt from the death penalty a heinous murderer who
was 17 years, 11 months, and 28 days at the time of his
offense, but would not exempt someone who was a few days
older. In short, her Shriners methodology leads to the
conclusion that what she thought in LeCroy to be
constitutionally mandated under the Eighth Amendment is
instead constitutionally impermissible under the Equal
Protection clause.
In sum, Justice Barkett's serious misapplication of
rational-basis review under the Equal Protection Clause
allows a judge to substitute his or her own policy
preferences for the legislature's legitimate enactments.
ii. substantive due process
The manner in which Justice Barkett has invoked
``substantive due process''--even where no fundamental right
is at stake and rational-basis review is therefore in order--
also raises serious concerns. In State v. Saiez, 489 So.2d
1125 (Fla. 1986), for example, she wrote an opinion holding
that a state law criminalizing the possession of embossing
machines capable of counterfeiting credit cards ``violate[d]
substantive due process under the fourteenth amendment to the
United States Constitution'' (as well as under Florida's
constitution). Specifically, she stated that the law was
``not reasonably related to achieving [the] legitimate
legislative purpose'' of curtailing credit card fraud. In her
words, ``It is unreasonable to criminalize the mere
possession of embossing machines when such a prohibition
clearly interferes with the legitimate personal and property
rights of a number of individuals who use embossing machines
in their businesses and for other non-criminal activities.''
Justice Barkett cited no federal authority in support of this
proposition.
The principle set forth in Saiez, if taken seriously,
would have far-reaching consequences. A broad range of
criminally proscribed items also have legitimate uses.
Switchblades can be used to slice apples. Marijuana can be
prescribed as medicine. Drug paraphernalia can be used for
tobacco. Explosive devices can be used to build tunnels.
It is extraordinary to conclude that ``substantive due
process'' or any other principle of law disables society
from determining that the harmful effects of some or all
of these so outweigh the beneficial effects that
possession should be criminalized. Again, the real danger
is that this overbroad and unsound principle can be
applied selectively in an unprincipled manner.
Justice Barkett acknowledged that she had relied on the
federal due process clause, but again thought such reliance
mitigated by the fact that she had discussed only cases
construing the state constitutional counterpart: ``if you go
on to look at the language that is used from other cases,
they are all Florida cases which have utilized the same
phrase, but interpreted it in a different way.'' [126:12-15]
When asked why she didn't apply just the State due process
clause, she responded: ``I think in essence I did, Senator,
and all I can--I mean, I can certainly accept that in a body
of law there are going to be occasions when you are going to
be careless.'' [129:6-9]
iii. loitering and the first amendment
In her plurality opinion (over a vigorous 3-justice
dissent) in Wyche v. State, 619 S.2d 231 (Fla. 1993), Justice
Barkett struck down as facially unconstitutional an ordinance
that prohibited loitering for the purpose of prostitution. In
companion cases decided the same day as Wyche--E.L. v. State,
619 S.2d 252 (Fla. 1993), and Holliday v. City of Tampa, 619
So.2d 244 (Fla. 1993)--she likewise struck down as facially
unconstitutional ordinances prohibiting loitering for the
purpose of engaging in drug-related activity.
Her first holding in Wyche was that the ordinance did not
require proof of intent to engage in unlawful acts of
prostitution. This holding is puzzling. The language of the
ordinance--criminalizing loitering ``in a manner and under
circumstances manifesting the purpose of inducing, enticing,
soliciting, or procuring another to commit an act of
prostitution''--appears plainly amenable to a reading that
the purpose that must be manifested actually exist. In
addition, the ordinance specifically provided, ``No arrest
shall be made for a violation of this subsection unless the
arresting officer first affords such person the opportunity
to explain this conduct, and no one shall be convicted of
violating this subsection if it appears at trial that the
explanation give was true and disclosed a lawful purpose.''
Especially in the criminal law, where such mens rea
requirements are routinely implied, it seems quite a stretch
to construe the ordinance otherwise.
Justice Barkett offered the view that to construe the
ordinance to have a specific intent requirement would be to
``legislate'' from the bench. But it seems that it would have
been more consistent with the judicial role to invoke a tenet
that is basic to our separation-of-powers system and that was
clearly recognized in Florida case law: namely, that courts
``have a duty to avoid a holding of unconstitutionality if a
fair construction of the legislation will so allow.'' State
v. Ecker, 311 So.2d 104, 109 (Fla. 1975).
Justice Barkett's second holding in Wyche was that, even if
the ordinance were construed to require specific intent to
engage in unlawful acts of prostitution, it ``still would be
subject to unconstitutional application'' and therefore would
chill protected speech in violation of the First Amendment.
But virtually every law could hypothetically be applied in an
unconstitutional manner that could chill First Amendment
speech. Under First Amendment doctrine, a person challenging
a law as facially overbroad must show that it would reach a
substantial amount of constitutionally protected activity. It
is difficult to see how the ordinance, if construed to
require specific intent, would reach any constitutionally
protected activity, much less a substantial amount.
The one federal case that Justice Barkett cites in support
of her holding, Board of Airport Commissioners v. Jews for
Jesus, Inc., 482 U.S. 569 (1987), is plainly inapposite. The
Supreme Court in Jews for Jesus simply stated that the
regulation in that case--which banned all First Amendment
activities at an airport--could not be permitted to be
remedied by case-by-case adjudication. To compare the
absolutist ban on First Amendment speech in that case to the
hypothetical and purely incidental effect on speech arguably
resulting from the ordinance in Wyche is strained in the
extreme.
Another serious problem with Justice Barkett's opinion in
Wyche is that it is at serious odds with--indeed, appears
irreconcilable with--the Florida Supreme Court's 1975 ruling
in State v. Ecker, 311 So.2d 104 (Fla. 1975), which held that
a general anti-loitering statute was constitutional. Indeed,
Wyche appears to overrule Ecker without even citing it or
otherwise acknowledging it. This is not a proper way to deal
with precedent.
Asked about Wyche, Justice Barkett repeatedly claimed that
all members of her court agreed that the statute was
defective but that the dissent was ready to remedy it.
[186:10-11, 186:25-187:1, 187:8-9] In fact, however, the
dissent stated that the statute was facially constitutional
(i.e., was not defective).
The net effect of Wyche, E.L., and Holliday is to hamper
severely the ability of communities to combat the scourges of
prostitution and drugs.
iv. obscenity
In Stall v. State [570 So.2d 257 (Fla. 1990)], the Florida
Supreme Court ruled--as it had several times before--that
Florida's laws against obscenity were constitutional. In a
brief 4-paragraph dissent, Justice Barkett took the position
that all criminal obscenity laws violate due process. (She
also joined another dissent that held that obscenity laws
violate the state right of privacy.) In her words:
``A basic legal problem with the criminalization of
obscenity is that it cannot be defined. . . . Thus, this
crime, unlike all other crimes, depends, not on an objective
definition obvious to all, but on the subjective definition,
first, of those who happen to be enforcing the law at the
time, and, second, of the particular jury or judges reviewing
the case. Such a procedure runs counter to every principle of
notice and due process in our society.''
Arguably, Justice Barkett might intend that her due process
holding rest only on the state constitution, though she
invokes ``every principle of notice and due process in our
society.'' In any event, she does not even cite, much less
discuss, U.S. Supreme Court precedent, such as Miller v.
California, 413 U.S. 15 (1973), that contradicts her
position. Miller held that material that, judged by
contemporary community standards, appeals to the prurient
interest, that depicts or describes, in a patently offensive
way, specifically defined sexual conduct, and that lacks
serious literary, artistic, political, or scientific value
can be outlawed as obscene.
Indeed, it appears that Justice Barkett misreads or
mischaracterizes the law that she would strike down. The
Florida law incorporated Miller's focus on contemporary
community standards as the benchmark of whether material is
obscene. Thus, the role of jurors would not be to make their
own ``subjective definition'' of what is obscene (as Justice
Barkett suggests), but rather to discern and apply the
existing community standards.
Further, the premise of Justice Barkett's position--namely,
that obscenity laws are somehow unique--is dubious. There are
any number of criminal laws whose definition or application
is not any more ``objective'' than obscenity laws. Take, for
example, criminal negligence or child neglect. Indeed, the
difference between justifiable self-defense and unjustified
homicide can equally be said to turn ``on the subjective
definition, first, of those who happen to be enforcing the
law at the time, and, second, of the particular jury or
judges reviewing the case.'' These features are an inherent
part of our criminal justice system. So it seems that her
basic premise cannot be maintained and that no special
solicitude for obscenity is warranted.
At her hearing, Justice Barkett stated that the statute in
Stall ``had language in it which, in my judgment, was very
ambiguous.'' [105:8-10] But since the language of the Stall
statute was the Miller standard, this suggests that Justice
Barkett is not content with the Miller standard. Given
Justice Barkett's treatment of other Supreme Court precedents
mentioned in this and other memoranda, there is reason to
worry that her apparent disagreement with this standard would
lead her to apply it too narrowly.
Justice Barkett also claimed at length that her opinion in
Stall needs to be read together with her vote in Schmitt v.
State, 590 So.2d 404 (Fla. 1991), where she joined the per
curiam opinion upholding a conviction under Florida's child
pornography statute. Justice Barkett repeatedly claimed that
the two cases involved ``the very same statute'' [106:25]:
``in both those cases, the same statute was being decided,
the same statute was being considered''. [106:16-17] In fact,
however, Stall involved the definition of obscenity under
Fla. Stat. 847.001, whereas Schmitt involved the definition
of child pornography under Fla. Stat. 827.071. Justice
Barkett's apparent claim that the court's decision in Schmitt
somehow vindicated her position in Stall [see 107:15-22]
cannot be sustained. (She may also be claiming that her
dissent in Stall was confined to her disagreement with the
definition of ``sexual conduct'' in subsection 847.001(11),
which is identical to the definition of ``sexual conduct'' in
the child pornography law. But: (a) nothing in her dissent
remotely supports such a limited reading, and (b) the
separate requirement in the obscenity law of ``appeal to the
prurient interest''--a requirement not present in the child
pornography statute--eliminates any overbreadth and makes
such a claim untenable.)
v. quotas
Justice Barkett's views on quotas are of serious concern.
According to newspaper reports, Justice Barkett was a member
of the Florida Commission on the Status of Women, which
issued a report in February 1993 that recommended passage of
state legislation requiring that all of Florida's
decisionmaking boards, councils, and commissions be half male
and half female by 1998. Justice Barkett defended the
Commission against charges that its report advocated a quota
system, by saying:
``It is not in the context of a quota system. It is
simply an acknowledgment that women make up one-half of
the population of this state.'' (St. Petersburg Times, 2/
23/93.)
If a rigid requirement that positions be filled according
to population is not a quota, then it is difficult to imagine
what would be. (Florida Governor Lawton Chiles stated that he
opposed the Commission proposal because it would create a
quota system. Orlando Sentinel Tribune, 2/23/93.) This issue
is not merely semantic: it may directly affect the breadth of
the remedial authority that Justice Barkett would believe
that she would have as a federal judge in cases of alleged
discrimination. The Supreme Court has ruled that the use of
preferential remedies and voluntary preferences is generally
disfavored, although it has upheld them in narrow
circumstances. If Justice Barkett cannot recognize a quota
for what it is, how can one have confidence that she will
properly construe Supreme Court precedents governing quotas
and other preferences and respect the limits that the Supreme
Court has placed on their use?
Told that her views appeared to lead to pervasive race and
sex quotas, Justice Barkett did not dispute this. Indeed, she
appeared to embrace it (in the euphemism of
``representation''): ``The goal of every women's group,
Senator, that I am aware of and the goal of every minority
group is that there be representation in policy-making bodies
that are going to affect their lives, whether it is in the
private sector or in the public sector. And I think that that
is a goal that is laudable. There are many different ways of
trying to achieve it, but I do not think that there is any
question that it should be achieved, and I am committed to
that.'' [184:3-11]
Of course diversity in private and public employment and in
policymaking bodies is welcome. The critical question,
however, is whether it is to be pursued by nondiscriminatory
means or by the use of quotas and preferences. Justice
Barkett's statement appears to treat this fundamental
distinction as though it were insignificant.
Even more disturbing is Justice Barkett's dissent in Foster
v. State, No. 76,639 (Fla. Apr. 1, 1993). In that case,
Foster, two young women, and another man, Lanier, drove to a
deserted area where one of the women was to make some money
by having sex with Lanier. As Lanier, who was very drunk, was
disrobing, Foster suddenly began hitting him and then held a
knife to Lanier's throat and sliced his neck. Foster and the
women then dragged the still-breathing Lanier into the bushes
and covered him with branches and leaves. Foster then took a
knife and cut Lanier's spine. Foster and the women then split
the money found in Lanier's wallet.
Foster was convicted of murder and sentenced to death in
1975. On resentencing, the trial court, finding three
aggravating circumstances, again imposed the death penalty.
The Florida Supreme Court, by a 4-3 vote, rejected Foster's
claim that his death sentence was a product of racial
discrimination against black victims. (The court did remand
for resentencing on other grounds.)
Justice Barkett, dissenting from this racial discrimination
ruling, would not accept the majority's determination that
Foster's statistical evidence purporting to show that white-
victim defendants in Bay County were more likely to get the
death penalty than black-victim defendants failed to
establish a constitutional violation. (Lanier, evidently, was
white; Foster, according to newspaper accounts, was also
white.) Justice Barkett would have relied on the Florida
Constitution's Equal Protection Clause to reach a result
rejected by the U.S. Supreme Court in McCleskey v. Kemp, 481
U.S. 279 (1987), under the federal Equal Protection Clause.
In McCleskey, the Court ruled that a capital defendant
claiming a violation of the federal Equal Protection Clause
must show the existence of purposeful discrimination and a
discriminatory effect on him. According to Justice Barkett:
(1) The McCleskey standard fails to address the problem of
``unconscious discrimination.''
(2) Statistical evidence of discriminatory impact in
capital sentencing that ``cannot be traced to blatant or
overt discrimination'' should establish a violation of
Florida's Equal Protection Clause.
(3) This statistical evidence should be construed broadly
to include not only analysis of the disposition of first-
degree murder cases, ``but also other information that could
suggest discrimination, such as the resources devoted to the
prosecution of cases involving white victims as contrasted to
those involving minority victims, and the general conduct of
a state attorney's office, including hiring practices and the
use of racial epithets and jokes.'' (Emphasis in italics.)
(4) The defendant should have the initial burden of showing
the strong likelihood that discrimination influenced the
decision to seek the death penalty. ``Such discrimination
conceivably could be based on the race of the victim or on
the race of the defendant.'' Once the initial burden has been
met, ``the burden then shifts to the State to show that the
practices in question are not racially motivated.''
The paralyzing effect that Justice Barkett's
proposed standard would have on the death penalty--and,
indeed, if taken to its logical conclusion, on the
criminal justice system generally--will be addressed in
another memorandum. For present purposes, what must be
emphasized are the broad-ranging implications that Justice
Barkett's disparate impact analysis could have on the
issue of quotas generally. Her focus on ``unconscious
discrimination'' shows that she rejects, for purposes of
Florida's Constitution, the basic principle under the
federal Constitution that discriminatory intent is an
essential element of an Equal Protection violation. Her
opinion also raises a legitimate concern that she might
adopt a view of statistical disparities under federal
statutes like the recently amended Title VII that
effectively mandates pervasive adoption of race and sex
quotas.
vii. concerns about impartiality
In In re Constitutionality of Senate Joint Resolution 2G,
601 So.2d 543 (Fla. 1992), the Florida Supreme Court selected
from among six different modifications to a state legislative
redistricting plan. Writing ``dubitante,'' Barkett wrote that
she was ``loath to agree to any of the convoluted plans
submitted under these hurried circumstances. . . . If I had
to choose only among those presented, however, I would choose
the plan submitted by the NAACP simply because this is the
organization that had traditionally represented and promoted
the position that advances all minority interests.''
(Emphasis in italics.)
Justice Barkett's frank admission that she would give
special weight to a position based on who offered it rather
than on its intrinsic merits is very disturbing and appears
clearly at odds with the obligation of judicial impartiality.
Justice Barkett claimed that her words were ``concededly
very inartful[]'' [174:15] and that what she ``was attempting
to say . . . was in rebuttal to a claim that the NAACP did
not adequately represent the interests of African
Americans.'' [175:1-4; see also 177:9-13] ``I can understand
in this case why you would read it the way you would read it.
It is inartful, and I wish that I had the opportunity to edit
that more than anything else that we have been talking
about.'' [175:12-14]
Concern about Justice Barkett's impartiality also arose at
her hearing over her involvement with a trial lawyer's group,
the Academy of Florida Trial Lawyers, while the case of
University of Miami v. Echarte was pending. Specifically:
(1) The Academy of Florida Trial Lawyers submitted an
amicus brief in this case in October 1991. The Trial Lawyers
brief (like other briefs submitted on behalf of one party)
argued that the cap on non-economic damages in medical
malpractice cases was unconstitutional.
(2) In 1992, this same organization of trial lawyers
created an annual award named after her, the Rosemary Barkett
Award, to be given each year to a person who, in the view of
the trial lawyers, has made outstanding contributions to the
law. In November 1992, she agreed to present the first annual
award at the trial lawyers' annual convention, which took
place one week after her successful retention election.
(3) In May 1993, she, in dissent, accepted the argument
that the cap on non-economic damages was unconstitutional.
It does not seem at all consistent with her obligation to
maintain both the fact and the appearance of impartiality for
her to decide a case in which an organization that had named
an award after her had filed a brief. Indeed, her actions
would seem to have violated the ABA Code of Judicial Conduct.
Canon 2, subpart B states that a judge ``shall not lend the
prestige of judicial office to advance the private interests
of others; nor shall a judge convey or permit others to
convey the impression that they are in a special position to
influence the judge. . . .'' Canon 3, subpart E(1) states
that a judge should disqualify herself in a proceeding in
which her impartiality might reasonably be questioned.
Justice Barkett stated that she understood the trial
lawyers' award to reflect the group's commitment to ``equal
justice under the law'' [179:20-21] and not to have anything
to do with its ``private interests'' [181:7]. In any event,
the trial lawyers' amicus brief in Echarte clearly advanced
their private interests, and her participation in that case
would seem to give rise to an appearance of lack of
impartiality.
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