A flawed trip to the electric chair

© St. Petersburg Times, published June 29, 1999

If all goes according to plan, Thomas Provenzano will be led into the death chamber at Florida State Prison at 7 a.m. July 7 and strapped into the electric chair. His mouth will be gagged and his head covered. It will appear the same as every other execution in Florida.

But there is one big difference: Provenzano will face the final days of his life with a lawyer who, by his own admission, cannot provide adequate representation. Whether or not the death penalty is ever morally justifiable, Provenzano's case is yet another reminder that Florida's system is dangerously flawed.

Provenzano, 50, is one of two inmates scheduled to die early next month in the state's electric chair. He and Allen Lee Davis are the first two inmates to have death warrants signed by Gov. Jeb Bush, and both are represented by the troubled Tampa office of the Capital Collateral Representative, the agency assigned to indigent death-row inmates.

The Tampa division, headed by former prosecutor John Moser, has the biggest problems of the three CCR offices. It is severely understaffed, and its lawyers have been accused of incompetence and unprofessionalism.

Moser went to a judge this month to admit the disturbing truth, that "we have no one in our particular office that has ever had any familiarity with Mr. Provenzano's case or has ever worked on Mr. Provenzano's case to any degree."

Moser's concerns were unheeded, and he was forced to remain on the case. The Florida Supreme Court was no help either, as the justices apparently forgot earlier precedent that inmates have a right to effective representation even in post-conviction appeals. In a unanimous decision, the court denied a stay to Provenzano and ordered Moser to remain on his case. What's more, the court has set specific deadlines to keep Provenzano's case moving quickly. His case returns to the court for a hearing today.

The high court's treatment of the death penalty has been erratic of late. This month, the justices rejected a petition by Holland & Knight lawyer Stephen Hanlon, who argued for a moratorium on executions because CCR statewide is drastically underfunded. The three agency offices were given about $8-million by the Legislature this year -- about one-third the amount experts say is required for adequate post-conviction counsel.

At the same time, the court does appear concerned about the system. Two weeks ago, the justices voted unanimously to vacate the death sentence of Ronnie Lee Jones because he had languished in prison for 12 years waiting for a competency hearing.

Why should anyone worry about a man already convicted of murder? Indeed, Provenzano's guilt is not in question. He gunned down an Orlando court bailiff in front of many witnesses in 1984.

But there are legitimate questions about his mental health, for example, that only a lawyer familiar with his case can adequately deal with. Was he insane at the time of the murder? Was he competent to stand trial? Is he competent to be executed, as courts have required? Some of those questions were dealt with at trial, but perhaps there is new evidence that would argue for life imprisonment instead of death by electrocution.

The precedent is dangerous. If the court is not concerned about Provenzano, then what about somebody who is innocent? On several occasions, death-row inmates have proved their innocence long after being convicted and sentenced to die.

Provenzano deserves to be punished. But he also deserves to have competent legal representation until the end.

© Copyright 1999 St. Petersburg Times. All rights reserved.