Florida executions in legal limbo

Deborah Denno in The Gainesville Sun, September 05, 2011

Media Source

By Nathan Crabbe
Staff writer

Published: Monday, September 5, 2011 at 6:37 p.m.

More than 33 years after he killed a Coral Gables police officer, Manuel Valle's execution has been delayed until at least Thursday to allow time for an appeal.

It's the latest twist that has seen Valle sentenced and re-sentenced to death three times since he shot Officer Louis Pena during a traffic stop in April 1978. Legal experts say a change in execution drugs that led to one of the latest delays could continue to impede Florida executions, while the state faces a perhaps greater challenge over its method of arriving at death sentences.

Gov. Rick Scott signed Valle's death warrant, the first since he took office, with the execution initially scheduled for Aug. 2 at Florida State Prison near Starke. A challenge to an execution drug led the date to be pushed to today. Last week, the 11th Circuit Court of Appeals in Atlanta ordered the execution to be postponed at least two more days to consider whether Valle, 61, was improperly denied a clemency hearing.

For University of Florida legal skills professor George R. "Bob" Dekle, delays to the execution of a convicted killer are nothing new. Dekle prosecuted the case of serial killer Ted Bundy for murdering 12-year-old Kimberly Diane Leach of Lake City in 1978. It took about 9½ years between Bundy's death sentence in that case and his execution.

"It didn't take long at all. He was on the fast track" compared to others on death row, Dekle said.

The average length of stay on Florida's death row for the 69 prisoners executed since 1979 is 12.68 years, according to the state Department of Corrections. Dekle said defense attorneys use "guerrilla warfare" in trying to prolong the lives of clients sentenced to death. Attorneys try to cause enough trouble and cost enough money that prosecutors throw up their hands and agree to a life sentence, Dekle said.

"It's not the way the system should work," he said. "Originally, death row was meant to be a temporary holding facility for somebody that should be executed in short order. That's not the way it is now."

In Valle's case, he initially went to trial with lightning speed — just 23 days after the crime. The Florida Supreme Court ruled that the quick turnaround denied Valle a fair trial in ordering the case to be heard again. He was sentenced to death again in 1981, but the U.S. Supreme Court vacated the sentence, and Valle was re-sentenced in 1988.

In recent years, challenges to the lethal injection method have led to delays in executions across the nation. Florida was forced to make changes after the botched execution of Angel Diaz, who appeared to be wincing in pain and required a second dose of lethal drugs, in December 2006. A state commission found that IV lines had been pushed through Diaz's veins.

The U.S. Supreme Court in 2008 upheld the three-drug cocktail of execution drugs used across the U.S. Florida and other states with lethal injection at the time used a similar three-drug combination of the anesthetic sodium thiopental, followed by a paralyzing agent and finally a drug that stops the heart. But the manufacturer of sodium thiopental stopped U.S. production earlier this year.

Florida switched to another drug, pentobarbital, in June. The Dutch manufacturer of the drug later announced that it was untested and unsafe for executions. That led to Valle's challenge over whether enough of the drug was being administered to prevent the pain from the final drug. After a delay to consider the claim, the Florida Supreme Court upheld the method.

Florida Department of Corrections spokeswoman Gretl Plessinger said the state has confidence in the new drug. She pointed to a consciousness check made after the drug was administered, one of the changes made following Diaz' execution, as ensuring inmates are not awake for the remainder of the execution.

"We're confident. We're ready to go," she said.

Differences in execution methods among states could open up a new round of challenges, said Deborah Denno, a Fordham Law School professor who specializes in death penalty issues. While some states have made a change similar to Florida, she said others have switched to another drug or replaced the three-drug cocktail with a single drug.

That could lead the U.S. Supreme Court to again consider whether the variety of methods meets the standards of its previous decision, she said.

"There was safety in numbers" but having multiple methods "starts to raise questions about what states are doing," she said.

Florida also faces challenges to its method of arriving at death sentences. Florida is one of the only states where juries can make death penalty recommendations that are not unanimous. Jurors also are not required to provide reasons for recommending the sentence, a method that a federal judge in Miami ruled in June was unconstitutional.

Dekle said the state might face other challenges over the non-unanimous death recommendations. The American Bar Association recommended changing the system in a 2006 report on the state's death penalty.

In Valle's case, a jury voted 8-4 to recommend death. Dekle defends the idea of not requiring unanimity, noting that a jury voted 10-2 for death in Bundy's case that he prosecuted.

"If he didn't deserve the death penalty, nobody does," Dekle said.

Contact Nathan Crabbe at nathan.crabbe@gvillesun.com.
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