Court may be ready to rethink chair

Despite the speculation, Gov. Jeb Bush sets a new execution date for Thomas Provenzano.

By JO BECKER

© St. Petersburg Times, published July 10, 1999

TALLAHASSEE -- Amid signs that the state Supreme Court is willing to reconsider Florida's method of executing killers, Gov. Jeb Bush on Friday reiterated his support for the electric chair.

Bush also set Sept. 14 as the new execution date for convicted murderer Thomas Provenzano, who was scheduled to die Friday but was granted a stay by the Florida Supreme Court hours after Allen "Tiny" Davis' execution ended in a bloody controversy.

"I remain convinced that the electric chair is an appropriate way to carry out death sentences in Florida," Bush said in a statement. "Death row inmates are on death row for a reason -- they have committed the worst crimes imaginable."

But the matter may be out of Bush's hands -- and into the hands of a much different state Supreme Court than the one that ruled two years ago that death by electrocution did not constitute cruel or unusual punishment.

Since then, the court's makeup has changed, and in recent rulings all seven justices have indicated that they are troubled by Florida's execution method.

Late Thursday, Provenzano's attorneys successfully persuaded the court to order a trial judge to conduct a hearing, scheduled for July 28-30 in Orlando, on the state's use of the electric chair.

At that hearing, Provenzano's attorneys will try to prove that Davis' execution shows the electric chair can cause a "bloody and lingering death," that the state does not follow its own electrocution protocol and that it is "deliberately indifferent to the substantial risk of pain" posed by the chair.

Retired Judge Clarence Johnson, who was appointed by the Supreme Court to hear Provenzano's appeals, must enter an order by Aug. 2. The Supreme Court has set oral arguments for Aug. 24 to review Johnson's findings

Only two years ago, the high court upheld the use of the electric chair on a narrow, 4-3 vote. That decision, filed in the case of convicted police killer Leo Jones, came after flames shot from the head of another inmate, Pedro Medina, who died in the chair.

Some experts think this week's order signals that the justices are willing to rethink that position.

Longtime death row attorney Marty McClain, who argued for Jones and has represented Provenzano, is hopeful.

"The fact that within two years we are revisiting this issue indicates they are troubled," said McClain. "I'm not sure that if it was the same court that I had in Jones we would have even gotten a hearing."

But since the Jones decision, three justices have retired. Two were in the narrow majority that upheld use of the electric chair.

Of the seven current justices, two have said they believe that use of the electric chair is unconstitutional. They are Justice Harry Anstead and Justice Leander Shaw. A third, Justice Major Harding, upheld the electric chair in the Jones case but urged the Legislature to consider offering lethal injection as an alternative, saying that could "avert a possible constitutional "train wreck' if this or any other court should ever determine that electrocution is unconstitutional."

And in an opinion issued July 1, two justices appointed after the Jones case expressed doubts of their own. They joined the majority in rejecting an earlier argument by Provenzano that the chair was cruel and unusual, but it was not a glowing endorsement of the electric chair.

Justice Fred Lewis wrote that electrocution "continues to walk the edge of constitutional propriety." He said the court "must never fear confrontation with precedent" when the facts that support such precedent are shown to "lack validity."

Justice Barbara Pariente agreed. In a separate opinion, she noted that the Legislature's failure to follow Harding's advice on lethal injection has left Florida "as one of a small minority of states selecting electrocution as the sole method of execution." And, she said, if the facts change as "a result of subsequently developed evidence," nothing precludes the court from changing its mind.

New Justice Peggy Quince joined Harding and Justice Charles Wells, both generally supportive of the death penalty, in a third opinion that also expressed concern.

"Once again," they wrote, "we are troubled that there is an indication that (the Department of Corrections) has not followed the protocol established for the appropriate functioning of the chair."

Now, Provenzano's attorneys will have a chance to prove the electric chair is unconstitutional, thanks to Davis' experience.

"This cannot have been a pleasant experience for the Florida Supreme Court," said Steve Hanlon, a lawyer for Holland and Knight in Tallahassee who takes death row cases. "You had a majority that said they were troubled, but went along based on the Department of Corrections' representations that everything would be fine."

Retired Justice Gerald Kogan, who served on the court from 1987 to December 1998 and has become an outspoken opponent of the death penalty, said it's impossible to guess what the court will do. "Maybe they are just going to have the state tell them what went wrong and how they are going to fix it."

But, based on his experience on the court, Kogan said "I think it's obvious, or at least it has been in recent years, that the justices are very troubled by the whole issue of capital punishment. That's true of even those who have voted time and time again to uphold the death penalty."

Carolyn Snurkowski, the deputy assistant attorney general in charge of prosecuting criminal appeals, refused to speculate.

"There's a whole cacophony of things they could do," she said. Asked about some of the language in the recent Provenzano ruling, she said "that's just one person's opinion."

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