Booker appeals frustrate lawyer

Booker appeals frustrate lawyer

A newspaper article about Todd Booker. Booker murdered a 94 year old woman and claimed that his death sentence was unconstitutional. Booker was helped by lawyers to push his death sentence.

Loughlin, Sean

The Gainesville Sun

HIST 298, University of Mary Washington

1988-09-14

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Gainesville-In the office of First Assistant State Attorney Ken Herbert is a file called "The Lady and the Beast."

The file sits with other papers and photographs in one drawer of a black, metal filing cabinet devoted to a murder committed almost 11 years ago.

The "lady" was a 94-year-old Lorine Demoss Harman, a Gainesville widow. The "Beast" is a Stephen Todd Booker, now 35, a death row inmate at Florida State Prison. He is scheduled to be executed Sept. 20 for the murder, but has an appeal pending before federal district court in Tallahassee. Inmate Freddie Lee Hall is also scheduled to be electrocuted on that date.
Herbert used "The Lady and the Beast" title to outline the tragic differences between Harman and Booker. On Nov. 9 1977, the 170-pound Booker raped, beat, stabbed and killed the 90-pound Harman in her apartment. Booker, a drifter, had broken into Harman's apartment and was ransacking it when Harman returned home.

The differences extend even after Harman's death. Alone, Harman probably only had minutes to fight desperately for her life. With several lawyers, Booker has had years to fight for his life through an exhaustive series of appeals that continued this week.

In his latest appeal, argued before federal district Judge Maurice Paul in Tallahassee on Monday, Booker's attorneys said his death sentence was unconstitutional because the jury wasn't allowed to consider some mitigating evidence such as Booker's history of psychological problems and drug addiction. Paul has yet to rule on the appeal, but one of Booker's attorneys said he expects Booker will survive his fourth death warrant and his death sentence will be overturned. Attorney Michael Mello, a professor at Vermont Law School, said the 1987 Supreme Court decision Hitchcock v. Dugger will work in Booker's favor.

That decision, delivered by Justice Antonin Scalia for a unanimous court, overturned a death sentence for inmate James Hitchcock, who was convicted of murdering his step niece. The court ruled his death sentence was unconstitutional because some mitigating evidence, such as Hitchcock's family background, was not considered by the jury.
Mello said the Booker jury was also limited in the mitigating evidence it could consider during the 1978 trial.

For Herbert, who prosecuted the case, the 10 years of appeals represented an abuse of the judicial system. Booker already has appealed his death sentence unsuccessfully on several different issue in several different courtrooms.
For Booker's attorney, the appeals are the only salvation for a system they say is flawed. In addition to Mello, Booker is represented by two attorneys based in Washington, D.C.

"If the death penalty is a deterrent, then most people would argue it's got to follow soon after the crime, so a message is brought forth," said Herbert in a recent interview. "At this point, I don't know how many people in Gainesville remember this case."

Herbert certainly does. Every time a death warrant has been signed for Booker and every time Booker has appealed, Herbert has been notified. His files on the crime are extensive, and throughout these papers, Herbert's anger with the viciousness of the crime is apparent.

Harman was stabbed nine times in her chest and received four cuts in the struggle with Booker. He left two knives embedded in her body, one in her neck and one in her chest. Before her death, she was raped.

Thus far, Booker's attorney have not questioned their client's guilt in the crime. The arguments have focused on whether the proceedings in court were constitutional.

Mello disputed Herbert's contention that the appeals process is being abused.

"It seems to me that the system is working precisely the way it should," Mello said. "What Ken Herbert is really saying is that Booker should have been executed earlier, even though signing his death warrant was unconstitutional. That strikes me as a misguided view."

But so far, Booker and his attorneys have been unable to prove the unconstitutional claim. The Florida Supreme Court, along with various circuit courts and even the U.S. Supreme court, have refused to throw out Booker's three other death warrants. Booker has survived them because those warrants have expired during earlier appeals.

Herbert said he is not opposed to Booker's right to appeal, but he said the judicial system is taking too long to reach a conclusion. Almost 11 years after Harman was stabbed to death, the fate of her killer is still undermined.

"People have a right to some finality in their judgments," Herbert said. "There needs to be a better process."

Serfis, Malin

Williams, Megan