By Leyte-Vidal, Henry; Silverman, Scott J. | Judicature, March/April 2006 | Go to article overview


Leyte-Vidal, Henry, Silverman, Scott J., Judicature

The judges who preside over death penalty cases are learned men and women dedicated to carrying out the law. They are also human beings with feelings and emotions who at times make the most difficult decisions in American jurisprudence.

The late night news runs a breaking story about the murder of a young woman in the south part of town and the hunt for her killer. You are just getting ready to go to bed. You stop and wonder whether you will be the judge assigned to the case once the authorities apprehend the perpetrator. You wonder this because you know that Florida is one of only three states (along with Alabama and Delaware) where the jury's verdict is advisory, and the trial judge is ultimately responsible for making the life or death decision.' The judge must give the jury's advisory opinion great weight but ultimately the judge makes the final decision. As you can imagine, this responsibility weighs heavily on Florida trial judges. The purpose of this article is to present the results of an informal survey of some of those judges to see how the responsibilities involved in death penalty trials affect them.

As a trial judge assigned to a criminal division you are required to make many tough calls. If the prosecution seeks the death penalty, you will find that there is no other type of case that requires as much work or contemplation. There will probably be media attention. The lawyers, the press, the public, and the appellate courts will scrutinize every decision you make. Your philosophy about capital cases does not matter anymore. All of the moral questions you may have discussed with your friends at dinner parties are irrelevant. If the blind filing system assigns the case to your division, you are going to have to live with the possibility that you may have to sentence a person to death.

A week later, you walk into your courtroom, look over to your left, and see a handcuffed man seated in the empty jury box wearing a red jump suit with several corrections officers hovering about him. You soon realize that it is the same person the police were seeking in the news broadcast you watched a week earlier. After reading the indictment, you learn that the prosecution is seeking the death penalty. This is your first capital case and you are about to confirm what you have already been warned numerous times in your judicial education courses-"death is different."

The media is already set up and prepared to report on the proceedings. You find that the defendant is indigent and qualifies for the services of the Public Defender; however, the Public Defender announces a conflict of interest and immediately moves to withdraw from the case. You must now appoint a substitute attorney (also known as conflict counsel) to represent the indigent defendant, but you do not get to choose just any lawyer. You quickly learn that the availability of able defense counsel is severely limited.

A well-qualified courtroom

The Florida Supreme Court, in response to several issues, but primarily due to claims of ineffective assistance of counsel, has established minimum standards for attorneys in capital cases.2 The rule specifically states that the standards generally required for lawyers in non-capital cases are inadequate for death penalty cases.3 Defense counsel must now meet a different set of minimum qualifications in order to defend someone charged with a death penalty offense. One of the requirements a lawyer must now meet is the successful completion of a legal education course devoted specifically to the defense of capital cases.1 Further, a lawyer must satisfy a separate set of rules adopted by the "conflict committee," which is responsible for approving and removing counsel from the list of available death penalty defense attorneys.5

Just as you are about to appoint a qualified lawyer from the list of available defense attorneys, the prosecutor respectfully inquires as to whether you, the judge, are "death" qualified. …

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