One way to strengthen confidence in the death penalty is to make sure every element in the process is fail-safe, and Gov. Jeb Bush plays a role in that process.
© St. Petersburg Times, published March 29, 2001
Supporters and opponents of Florida's death penalty have a common interest, though it's sometimes hard for all of them to see it. If fewer people went to death row, but the cases against them were stronger, the time to execution would be measured more often in years than in decades. Meanwhile, those who object on principle could at least have some confidence that Florida wouldn't be killing the innocent.
Gov. Jeb Bush took a significant step in that direction this week by endorsing the legislation to prohibit death sentences against people who are mentally retarded. The bill, a compromise on trial procedure strongly endorsed by the state attorneys, is up for final passage in the Senate Thursday. It won unanimous approval in the first of four House committees this week, a hopeful contrast to the House's refusal to even hear the bill last year.
Al Cardenas, the state Republican chairman, intervened in a timely way to move it along. "Normally I do not take pen in hand to advocate specific issues. . .," he wrote to Speaker Tom Feeney on March 19. "However, this issue is of such importance to me on a personal level based on faith and moral beliefs, that I feel compelled to do so."
Next on the governor's agenda, if Bush wishes to enhance the confidence of the public and the courts in the death penalty, is the opportunity to appoint two of the nation's most capable defenders to head the northern and middle region Capital Collateral Regional Counsel offices.
These offices, which represent death-sentenced prisoners who have lost their initial appeals, are Florida's last line of defense against the execution of an innocent person. This is a danger that cannot be taken lightly, given that Florida already leads the nation with 21 people having been released from death row for provable or probable innocence.
But for these defenders, Frank Lee Smith likely would have been electrocuted under a 1989 death warrant, 11 years before DNA evidence finally established his innocence. Tragically, Smith was dead by then, of cancer, after 14 years on death row.
One of Smith's saviors, the nationally known defense counsel Martin J. McClain, is among the three nominees for the CCRC position at Tallahassee. Bush could not go wrong in picking either him or Todd G. Scher, a CCRC counsel at Fort Lauderdale.
The middle region at Tampa also boasts a nominee of national reputation. He is Kenneth Driggs, of Atlanta, who worked with the Volunteer Lawyers Resource Center in Texas before Congress spitefully shut the program down. Previously, Driggs was seasoned in Florida politics as an aide to House Speaker Donald Tucker.
The middle district also has a nominee of whom Bush should be wary. Sara D. Baggett, a former assistant attorney general, devoted much of her application to denouncing the CCRC offices for excessive diligence in behalf of their clients. She may have thought that's what the governor wanted to hear. It should not be.
The defenders already occupy a tenuous political footing that recalls Walter Mathau's role in a 1990 TV movie, The Incident. Mathau plays a lawyer assigned to defend a German prisoner of war who is being framed for murder. Mathau's diligence irks the judge, who reveals that he was chosen for his mediocre reputation and is supposed to lose the case. Mathau wins anyway.
Whenever the CCRC lawyers win a case, or are simply seen as trying too hard, they offend a certain low class of Florida legislators who, like the fictional judge, would prefer that they do just enough to satisfy the appearance of due process.
If the death penalty is to be trusted to any degree, if it is not to disgrace the people in whose name it is carried out, every element must be fail-safe. Good defenders are no less essential than good prosecutors, good judges and good cases. Whoever doubts that is, unwittingly, the best ally that an abolitionist could have.