Shifts in law come too late to aid killer of Florida couple

Shifts in law come too late to aid killer of Florida couple

Death Penalty

The issue of Raleigh Porter's death sentence by electric chair could have been avoided due to newer laws in Florida courts.

McKinnon, John D.

Pancake, John

The Herald

HIST 298, University of Mary Washington

1995-03-28

The materials in this online collection are held by Special Collections, Simpson Library, University of Mary Washington and are available for educational use. For this purpose only, you may reproduce materials without prior permission on the condition that you provide attribution of the source.

2 JPGs

300 DPI

English

Florida

To the lawyers defending him, Raleigh Porter sometimes seems like a ghost already, Porter, who's scheduled to be executed Wednesday, would not face the electric chair if his appeals were being considered today, they say.

But Porter doesn't live in the present - not the legal present, anyway. Instead, he inhabits another legal world, one that has been dead and buried for a decade.

Soon enough, unless the courts intervene, Porter will finally be put to rest, just like the old rules and standards that determined his fate.

Even then, though, Raleigh Porter's case - and the problems it symbolizes - are likely to keep haunting the courts.

Convicted in 1978 of strangling two Port Charlotte retirees, Porter seemed to be a good candidate to be spared the electric chair: At his sentencing [[end page]] [[start page]] hearing, he won a recommendation of life in prison from the jury.

BY most accounts, it was one of Porter's lawyers who pulled it off. In his closing argument, attorney Robert Jacobs read a description of an electric-chair execution:

"The executioner threw the switch. My father smashed into his straps as if hit by a train. He snapped back and forth, cracking like a whip. The leather straps groaned and creaked. Smoke rose from my father's head. . . . When the current was turned off my father's rigid body suddenly slumped in the chair, and it perhaps occurred to the witnesses that what they had taken for the shuddering spasmic movements of his life for God know how many seconds was instead a portrait of electric current, normally invisible, moving through a field of resistance." [[end page]]

[[start page]] As it turned out, this was fiction - and not entirely accurate fiction - from a novel, E.L. Doctorow's The book of Daniel. But it may have worked. Something did.
The jury voted unanimously for life.

The judge in the case, Richard M. Stanley of Naples, wasn't so sympathetic. And unbeknown to Porter's lawyers, he'd already decided that Porter should die.

"The court is aware that a death by electrocution is not a pretty sight, but then neither were the pictures of the bodies of the old married couple," Stanley intoned a few days later. "The totality of the circumstances dictate the death penalty be imposed."

In looking back on the sentence, Stanley says: "I thought about that old man and old woman, married over 50 years...and then one had to watch the other being strangled."

Evolving policies

Even before the judge pronounced Porter's fate, the state Supreme Court had decided that jury recommendations would be followed when there was any plausible reason for doing so. But when it comes to the modern death penalty, it's often hard to know just what the law is, or what it means.
For two to three years in the mid-1980s, for example, the state Supreme Court seemed to change its mind concerning cases where the judge overrides the jury. It let stand a number of death sentences where the jury had recommended life. No one knows why.

So when Porter appealed his case in 1985, the Supreme Court upheld Judge Stanley's death sentence, even though attorneys could offer several reasons for the jury's life recommendation, including his age and demeanor on the stand.

"Porter [was] just singularly unlucky in the time frame when [[end page]] [[start page]] [[Death penalty backer: Judge Richard M. Stanley - image]] his appeal came up," says Michael Mello, a Vermont Law School professor and an expert on Florida's death sentence. "It really was during the only window during its history when the justices seemed to have lost their interest in closely monitoring jury overrides. . . . And hence Raleigh Porter's death warrant."

1972 high court ruling

For the death penalty - especially the death penalty - it wasn't supposed to be so confused, so convoluted. But sometimes it seems the harder judges and lawyers try to get the death penalty right, the more they get it wrong.

The problems date from the early 1970s. Concerned that the death penalty had been applied disproportionately against minorities, the U.S. Supreme Court in 1972 struck down death penalty laws across America, demanding that states find a system that would be more rational, more standardized, more uniform.

To lawyers and legislators, that could only mean one thing - reining in the traditional discretion of juries. Juries had been responsible for doling out death for years, with only their consciences as their guide. Now, the process would be guided by judges armed with complex new legal formulas.

In the vanguard, Florida would be the first state to try to meet the new standards. Like a lot of first tries, it was far from perfect.

In particular, Florida officials couldn't quite decide whether the U.S. Supreme Court just wanted more rules for jurors to follow, or whether the high court wanted jurors cut out altogether [[end page]]

[[start page]] So lawmakers reached an awkward, yet well-intended compromise: Jurors would stay in, but they would get less authority. They would make a recommendation. But the final decision would be made by the trial judge.
The legal architects thought this had a big advantage: Florida believed that death sentences would become more rational [[end page]] [[start page]] because judges - unlike juries - could apply specific standards to each case in written orders, and appeals courts could follow their thinking and review sentences in detail.

It didn't work out that way.

Intricacies upon intricacies

The new system with its formulas turned out to be incredibly complex, requiring juries and judges to consider many factors - violent criminal record and motive, for example.
Because of the complexities, appeals judges found themselves tinkering at one point. Finally they decreed that Florid'as whole system was too complex. They declared that henceforth jury sentencing recommendations in death cases would be upheld unless "virtually not reasonable person" could agree with it.

What's more, every time the appeals courts made a change in the law, they created a new appeal issue for every Death Row inmate who had already gone through. In a legal setting that demanded NASA-quality tolerances, executions become more difficult to accomplish that a space shuttle launch - and almost as expensive.

Even so, there are still bugs in the system. Perhaps because judges have become so painfully aware of the delays they've fostered, they sometimes haven't been as careful about retrofitting the changes they keep making - as Raleigh Porter is finding out.

Some state Supreme Court justices have even said that they would not decided cases like Porter's the same way today as they did in the mid-1980s.

The Florida courts "have been pretty reluctant to revisit a lot of cases," says Mello, the Vermont Law School professor. In many cases, "they've bent over backward to come up with whatever artifice they could" to avoid overturning old death sentences, he says. [[end page]]

[[start page]] 'Law of the case'
Among the reasons courts have used have been a doctrine called "the law of the case," which means that issues decided in the first appeal - such as the jury override in the Porter case - usually can't be revisited in later appeals.

Why the difference in treatment of some cases versus others?
"I've really tried to ponder what explains the difference, and I haven't come up with any explanation other than randomness," Mello says. "It's just a crap shoot."
Meanwhile, judges have tinkered with Raleigh Porter's case for 17 years. Today, the Florida Supreme Court will hear the last appeals scheduled in the case.

But Judge Stanley, the man who sent Porter to Death Row 17 years ago, has no doubts about the death penalty. He remembers [[end page]]

[[start page]] a debate with foes of capital punishment:
"They said to me, 'Judge, suppose that they passed a law that said the man who passes the death sentence has to flip they switch on the electric chair?' I said to them. 'Well, I will go along with that as long as they allow me, right after I pronounce the sentence, to reach down by my left leg and come up with my pistol and shoot 'em right between the eyes."

John D. Mckinnon, who holds a law degree from the University of North Carolina, covers legal affairs in The Herald's Tallahassee bureau.

Tomorrow: Redemption on Death Row.
[[On Trial: Raleigh Porter was convicted in Moore Haven, Fla. - image]]
[['81 police mugshot: Porter - image]]

Newspaper

The Herald from Tuesday, March 28, 1995. 7A

Blake, Amy

Dickinson, Terra