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Corrections

REPORT

P. 107: In a few of the very early that were distributed the following change needs to be made: replace the last three lines of the first paragraph, beginning with "Virginia's test" and ending with "further study" with:

Virginia's test earlier this year232)); (4) limiting defendants' ability to petition for a new trial based on innocence to a 21-day period following conviction, the shortest such time-frame in the region (and nation); and (5) failing to provide legal assistance to indigent (meaning nearly all) capital prisoners or funds for it at the state post-conviction phase, thus limiting the capacity of that second inspection (which has proved so important in Maryland, North Carolina, and South Carolina) to detect and correct serious error.233 These questions bear further study.

ENDNOTES:

Note 36: In lieu of the period at the end of the third paragraph of the end note, in some copies, the following should be added: "; infra notes 232-33 and accompanying text."

Note 40: In the first line of the last paragraph of this note, the number "5,780" should be "5,760"

Note 110: In the first line, "Blackman" should be "Blackmun"

APPENDICES:

Appendix A:

P. App. A-7, Table 30: In the Florida line of the table, on a few very copies of the report, the following changes need to be made: "% Reversed on State-Post-Conviction" = 17; "% Reversed in State Courts Overall" = 58; "Overall Error Rate, Including State PC" = 73.

P. App. A-31, Louisiana Capital Punishment Report Card: in the very bottom line, the caption on the row (the row that reports the correct information "36% [39%]") should read "Overall Success Rate".

Appendix C:

As noted in the Introduction to Appendix C and elsewhere, it is especially difficult to obtain information of the sort reported in this appendix, about capital state post-conviction proceedings. Any information readers have that is not reported in Appendix C but is within the research parameters should be brought to the authors attention. [jliebman@law.columbia.edu]

Florida:

P. App. C-12:

Deaton v. Dutton entry: Dutton = Dugger
Dugan v. Wainwright entry: Dugan = Dougan

P. App. C-13

Gorham v. State entry: add at end of parenthetical: "reconvicted of lesser offense"

Frank Griffin entry: add at end of parenthetical: "state stipulated to relief based on prosecutorial suppression of evidence and incompetent lawyering"; UK = IAC/PSE

P. App. C-14

Clarence Jackson entry: add at end of parenthetical: "state stipulated to relief based on ineffective assistance of counsel, then stipulated to life sentence in return for Jackson's agreement to drop his claim of prosecutorial suppression of evidence"; UK = IAC

Elijaah Jacobs entry: add at end of parenthetical: "state stipulated to relief based on incompetent lawyering at penalty trial"; UK = IAC

Daniel Karr Johnson entry: add at end of parenthetical: "order imposing new sentence gives incompetent lawyering as basis for relief"; UK = IAC

Paul Johnson entry: 490 So.2d 838 should be 490 So.2d 938

Lemon v. State entry: add at end of parenthetical: "remand order from Florida Supreme Court states that sole issue on remand, on which relief was granted, was ineffective assistance of counsel at guilt and sentencing trials"; UK = IAC

Carlis Lindsey entry: add at end of parenthetical: "relief granted because trial judge had permitted prosecutor, ex parte, to write the judge's order sentencing Lindsey to death"; UK = O

Bobby Lusk entry: add at end of parenthetical: "only issue before court on evidentiary hearing that led to state's agreement of overturn prior judgment and impose lesser sentence was prosecutorial suppression of evidence"; UK = PSE

In addition to the above changes are the following in regard to Appendix C's discussion of Florida state post-conviction cases: New information, not discovered prior to the drafting of, and or not counted in, Appendix C:

Barclay v. State, 470 So.2d 691 (Fla. 1985) (new appeal granted due to ineffective assistance of counsel on appeal; on new appeal, supreme court reduces death sentence to life) [IAC, L]

*State v. Alfonso Green (Hillsborough County, 13th Judicial Circuit, May 2000, No. 86-14233) (on eve of state post-conviction hearing, state confessed error - ineffective assistance of counsel on sentencing - and stipulated to an order, entered by the judge, overturning the death sentence and requiring a new sentencing trial; retrial pending) [IAC, RP]

State v. Reichmann, 2000 WL 205094 (Fla. 2000) (death sentence overturned based on ineffective assistance of counsel and on trial court's having permitted prosecutor, ex parte, to prepare judge's order sentencing Reichmann to die, thus denying the defendant of an independent weighing of aggravating and mitigating circumstances; retrial pending) [IAC, RP]

*State v. Kenneth Stewart (Hillsborough County, 13th Judicial Circuit, May 2000, No. 85-5667 & 6167) (on state post-conviction, state confessed error - ineffective assistance of counsel on sentencing - and stipulated to an order, entered by the judge, overturning the death sentence and requiring a new sentencing trial; retrial pending; the basis for relief was that Stewart was sentenced to death while represented by a crack-addicted lawyer who subsequently was criminally convicted and disbarred) [IAC, RP]

*Raymond Michael Thompson v. Florida, 731 So.2d 1235 (Fla. 1999) (death sentence overturned due to bias of original judge who overrode jury recommendation of life; retrial pending) [JB, RP]

Trawick v. State, 617 So.2d 322 (Fla. 1993) (new trial granted and defendant given life sentence in 1992, following state's confession of ineffective assistance of counsel; appeal was thereafter dismissed) [IAC, L]

Wilson v. Wainwright, 474 So.2d 1162 (Fla. 1985) (conviction overturned due to egregious ineffective assistance of Wilson's appellate attorney; on reappeal, the Florida Supreme Court determined that the evidence did not support a death sentence, and ordered that a life sentence be imposed) [IAC, L] {CHANGE: this case was omitted from the tabulations in Appendix C, although it was mentioned in the Appendix; we did not originally tabulate it because it came to our attention too late to be used in the tabulations}

Revisions to information in Appendix C:

Mikenas v. Dugger, 519 So.2d 601 (Fla.1988) (same as Combs; resentenced to death) [I, L] {CHANGE: substitute L for D; see Orval Jackson, Convicted killer is resentenced to life in prison, Tampa Tribune, Sept. 13, 1991)}

Scott v. Dugger, 604 So.2d 465 (Fla. 1992) (death sentence overturned as disproportionate to life sentence given to equally or more culpable codefendant; Supreme Court orders imposition of life sentence) [O, L] {CHANGE: substitute L for D}

Rivera v. Dugger, 629 So.2d 105 (Fla. 1994) (death sentence overturned because sentencer considered multiple invalid aggravating circumstances) [O, DW] {CHANGE: substitute DW for L; Rivera was not returned to death row, as Appendix C reported; the reason, it turns out, is not a sentence less than death but his commission of suicide while awaiting retrial}

William Lee Thompson v. Dugger, 515 So.2d 173 (Fla.1987), cert. denied, 485 U.S. 960 (1988) (same as Combs; resentenced to death) [O, D] {CHANGE: substitute D for L}

Waterhouse v. State, 522 So.2d 341 (Fla. 1988) (same as Combs; resentenced to death) [I, D] {CHANGE: as Appendix C originally reported, Waterhouse was "resentenced to death"; a "D" thus is substituted for the "L"}

Way v. Dugger, 568 So.2d 1263 (Fla. 1990) (same as Waterhouse above)

These changes lead to the following revised summary of Florida Data:


Revised Summary of Florida State Post-Conviction Data
In Original As Corrected Change
Pre-1996 reversals: 64* 67* +3
1996 and after reversals: 10 14 +4
Total: 74 81 +7

Basis for Relief
IAC = 21 30 +9
IAC & PSE = 1 3 +2
PSE = 12 13 +1
I = 17 17 none
JB = 2 3 +1
O = 11 12 +1
UK = 10 3 -7

Result on Retrial:
L = 52 53 +1
D = 21 22 +1
RP = 1 5 +4
DW = 0 1 +1
*The increase from 64 to 67 in 1973-99 Florida state post-conviction reversals due to serious error is the only change that affects the Florida Capital Punishment Report Card, at App. A-19. All other numbers on that report card remain the same.


As a result of this new information, we learned the following:

  • Appendix C undercounts by 7 the number of Florida capital verdicts that were reversed by state post-conviction courts due to serious error: Appendix C originally reported the number of such reversals as 74 (64 occurring during the 1973-95 study period; 10 occurring thereafter). We now have identified 81 such reversals (67 occurring during the 1973-95 study period; 14 occurring thereafter).
  • Appendix C undercounts by 1 the number of capital judgments that, upon reversal and correction of the serious error, were replaced by noncapital judgments, thus confirming the seriousness of the error and importance of correcting it.
  • Appendix C undercounts by 1 the number of capital judgments reinstated on retrial. Appendix C originally reported the number of death sentences replaced with lesser sentences on retrial as 52 (71% of the known outcomes); in fact, there were 53 (which is still 71% of the known outcomes).
  • Appendix C undercounts by 9 percentage points the proportion of reversals due to incompetent lawyers. That proportion is 42% (30 of 78 known cases). We previously reported the proportion as 33% (21 of 64 known cases).

In addition: Although we accurately report Hudson v. State, 614 So.2d 482 (Fla. 1993), as having led to a death sentence on retrial after state post-conviction relief, it is interesting to note that the state supreme court subsequently overturned Hudson's death sentence a second time, on direct review of the new death sentence (see Hudson v. State, 708 So.2d 256 (Fla. 1998)), after which Hudson was resentenced to life on Nov. 9, 1998. Likewise, we accurately report Stevens v. State, 552 So.2d 1082 (Fla. 1989) as having led to a death sentence on retrial after state post-conviction relief. But on direct appeal of the new death sentence, the state supreme court ruled that the state trial court should have imposed a life sentence at the retrial, which the state supreme court did (see Stevens v. State, 613 So.2d 402 (Fla. 1992)). Also, we accurately report McCray v. State, 510 So.2d 874) (Fla. 1987) as having led to a death sentence on retrial after state-post-conviction relief. But on direct appeal of the new death sentence, the state supreme court ruled, in this case as well, that the state trial court should have imposed a life sentence at the retrial, which the supreme court did (see McCray v. State, 582 So.2d 613 (Fla. 1991)). Thus, three cases that we conservatively report as a "D" (death sentence imposed on retrial) involve individuals who in fact are no longer on death row, as a result of a court reversal followed by the imposition of a lesser sentence following retrial).