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February 13, 2012

Just why are the "waits" on Florida's death row so long?

The question in the title of this post is prompted by this local article, headlined "Inmate on death row since 1980 set to die" which discusses not only today's scheduled execution in Florida, but also the state's long history of having those condemned to death wait a long time for an actual date with the execution chamber.  Here are excerpts:

A twice-convicted murderer who has lived on Florida’s death row for more than three decades is scheduled to die by lethal injection this week for killing a St. Petersburg mother — but like many executions, why he is being killed now and why it didn’t happen years ago are both something of a mystery.

If 65-year-old Robert Brian Waterhouse is executed Wednesday at Florida State Prison near Starke, he will have lingered on death row longer than any of the previous 276 people executed by the state, according to the Department of Corrections.  He’s spent more than 31 years mostly by himself in a 6-by-9-foot cell as his various appeals worked their way through the courts.

Just 18 of the 395 people currently on death row have been there longer than Waterhouse, who was sentenced in September 1980 for raping and killing 29-year-old Deborah Kammerer.

No one in Gov. Rick Scott’s office would talk in detail about the process that led him to pick Waterhouse over others whose appeals have run their course.  It’s the third death warrant Scott has signed since taking office in January 2011....

Asked about it at an appearance in Tampa last week, Scott said he sits down with a team of staffers and goes through the roster of death row inmates who have exhausted their appeals.  “I spend a lot of time praying about it and thinking about it, and it’s a hard decision,” he said. “There is not ever one issue” that leads to an inmate being selected to die.

Others familiar with the process say that because many condemned inmates’ cases are in various stages of appeal and new litigation is filed all the time, there is never a clear choice for the governor.

The attorney general’s office is charged with keeping track of the status of cases, and generally responds to requests from the governor regarding individual inmates who’ve been through their major appeals and the clemency process, and would likely be unsuccessful with any appeals filed after the death warrant is signed.  Typically, they’ re inmates who haven’t initiated any new litigation in years.

Craig Trocino, who handled death row appeals for years before going to work for a University of Miami law school clinic, said the “incredibly secretive” nature of the governor’s selection process has always disturbed death penalty opponents. “There was no logic to any it, as far as we could tell, and nobody was speaking about it,” Trocino said....

University of Florida law professor George R. “Bob” Dekle, a former prosecutor who sent notorious serial killer Ted Bundy to death row, said Florida governors have rarely been forthcoming about the reasons they select one inmate over all the others for execution.

Dekle said appellate lawyers do their best to make sure it’s not an easy choice for the governor.  They file whatever they can for as long as they can to keep their cases alive in the courts.  New issues based on recent court rulings and changes in the law provide new fodder for appeals all the time, he said.  “It’s guerilla warfare,” Dekle said.  “As long as you can put it off, as long as you can delay, as long as you can keep the thing going in any way, shape or form possible, that’s how much time you’ve got.”

The remarkable fact that Robert Brian Waterhouse has been on death row in Florida since the Carter Administration is made even more remarkable by the fact that there are 18 killers on Florida's death row who have been there even longer!  Because apparently none of these 18 long-timers have a scheduled execution date, and because Florida has averaged only about two execution per year over the last decade, it seems quite possible (even likely?) that some Sunshine State murderer may end up living a full half-century on Florida's death row.  Wow.

As regular readers know, so-called "guerilla warfare" in litigation by those who represent condemned inmates is not at all unique to Florida.  Moreover, the Eleventh Circuit does not have a long record (as does, say, the Ninth Circuit) of reversing lots and lots of death sentences.  Thus, I cannot help but think Florida's state courts and/or its prosecutors may best account for why capital justice drags on so very long in the state.  But perhaps in-the-know readers have more informed insights on just what slows down so dramatically the march to the death chamber in Florida (and, for that matter, whether anyone really cares all that much about how slow this march has come to be).

February 13, 2012 at 11:42 AM | Permalink


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personaly i don't think the governor needs to be involved. Once all appeals are done and nothing is on the court docket for an individual...they should be automaticaly set an exectuion date say 6 months after the final appeal. Absent any new court action. Sentence is carried out!

Posted by: rodsmith | Feb 13, 2012 12:36:14 PM

I don't think it's that much of a mystery why these things drag on for years, in Florida and many other states: They drag on because defense lawyers want them to, and the system -- precisely because it's at pains to be careful -- allows it.

The answer is in the last paragraph:

"Dekle said appellate lawyers do their best to make sure it’s not an easy choice for the governor. They file whatever they can for as long as they can to keep their cases alive in the courts. New issues based on recent court rulings and changes in the law provide new fodder for appeals all the time, he said. 'It’s guerilla warfare,' Dekle said. 'As long as you can put it off, as long as you can delay, as long as you can keep the thing going in any way, shape or form possible, that’s how much time you’ve got.'"

The defense bar gets two benefits from dragging things out. First, it keeps the client from the punishment the jury imposed; and second, it allows them to say, after creating so much delay for delay's sake, "Gee, we've got to abolish the death penalty because there's so much delay."

Posted by: Bill Otis | Feb 13, 2012 3:24:00 PM

This case was sent back for resentencing in 1988 due to a Hitchcock error and the whole process started again. It also sat idle since 2006 until Scott signed the warrant. Former Governor Crist should have ordered it earlier. The interesting thing is that I cannot find any record of Waterhouse being in US District Court or the 11th Circuit. If he gets a stay from either of those courts, I would think his counsel purposely didn't file any appeals purposely until a warrant was signed, holding the federal court appeal "up his sleeve." If someone can find any litigation on federal appeals for this, correct me.

Posted by: DaveP | Feb 13, 2012 3:44:12 PM

And this differs how from other states, Bill? And you would do what to prevent all that inappropriate lawyering?

Posted by: N. D. Noe | Feb 13, 2012 3:46:26 PM

Bill Otis

the selection process in Florida is insane. The Executive Branch starting with Crist just didn't want to sign the warrants. Crist was running for US Senate and didn't want bad publicity in the press like Texas Governor Perry receives.

There are 45 plus inmates who have been through numerous state appeals and had their federal appeals denied. They can't go into federal court anymore repeatedly due to AEDPA, so they file motions in state court over and over again.

Posted by: DaveP | Feb 13, 2012 3:51:03 PM

Looking at what other states are doing is really comparing apples and Florida oranges N.D. Anybody who knows Florida knows that if you want to get the pulse of what's going on here (or stop one) you need to be aware of the state's sports-infused public collective-unconsciousness...

Waiters rhymes with Gators.

It's that simple. No neeed to make some complicated thing out of it.

Posted by: Sarah Soda | Feb 13, 2012 4:02:23 PM

Dave P --

"They can't go into federal court anymore repeatedly due to AEDPA, so they file motions in state court over and over again."


Posted by: Bill Otis | Feb 13, 2012 4:32:47 PM

Bill Otis

I am really interested on how this is going to play out. As I posted above, unless I am missing something, no one has noticed that Waterhouse has never been in federal court. I vaguely remembered the name when the warrant was signed, but I assumed that appeals were exhausted in state and federal courts due to the murder occuring in 1980. Wrong.

There are 2 branches of government in Florida hesitant about carrying out executions. The Governor's office and the Florida Supreme Court. I assume some of it has to do with the amount of exonerations in the state. The other issue is the non-unanimous jury verdict that Florida gets a lot of heat for.

Posted by: DaveP | Feb 13, 2012 4:45:20 PM

Dave P --

Just a question: Are there any inmates on Florida's death row who got there by a non-unanimous vote for conviction?

Posted by: Bill Otis | Feb 13, 2012 4:49:35 PM

Bill otis

No. Guilt phase is unanimous. Sentence is by majority vote.

Posted by: DaveP | Feb 13, 2012 4:51:25 PM

Dave P --


Posted by: Bill Otis | Feb 13, 2012 8:41:10 PM

Florida currently has 89 death-row inmates who've exhausted their appeals. http://www.cncpunishment.com/forums/showthread.php?3843-Update-on-Florida-Death-Row-Inmate-Status&highlight=florida+status+waterhouse

My question would be why not sign warrants for all of them? Other states seem to be handle multiple executions--including ones carried out on consecutive days.

Posted by: alpino | Feb 14, 2012 3:17:50 AM


I heard from a reliable source that the Governor's office doesn't want to "flood" the Florida Supreme Court with death warrant cases. Everytime a warrant is signed, it opens up a new post conviction appeal and the FSC sets a briefing schedule. The inmate raises the same issues as before such as Waterhouse did and the court permits it because if you listen to the oral arguments online, Justice Pariente is always concerned about "death being different" no matter how many times they have heard the case. I also heard that the Governor's office doesn't want to overburden the execution team and cause mistakes.

Scott needs to get some guts and stop waiting until the active case is done with before he signs more.

Posted by: DaveP | Feb 14, 2012 7:10:03 AM

Bill-- don't forget that after filing all this frivolous nonsense(and a big part of the problem is the Fla. Sup. Ct. and its rules allowing for "shell motions" and repeated postconviction filings)they get to claim "see, it COSTS too much!"

Posted by: Rich Mantei | Feb 14, 2012 7:47:58 AM

Scott's in a tough position. If SCOFLA can't move on death cases (even ones that have been through all the appeals) then he really can't sign a ton of warrants. However, more than one should be pending at any one time.

And, Gov. Scott, with respect to the execution team--practice makes perfect.

Posted by: federalist | Feb 14, 2012 12:41:01 PM

i'm with federalist here. My first question would be WHY is the supreme court opening a NEW APPEAL just becasue the warrant was signed? Seems to me time to do that would be BEFORE it was signed.

If that is the law in florida it's almost as retarded as most sex crimes laws outthere and should be canned!

sorry if there is no new action in court for a set period of time say 6months to a year. Warrant should be generated automaticlly by the DOC computer system and a date set within 6 months! absent any new court action warrant should be executed along with the convict!

Posted by: rodsmith | Feb 14, 2012 2:57:33 PM


agreed. Everytime a warrant is signed in FL, FSC basically starts a new round of state postconviction appeal setting a briefing schedule and imposing time limits on the state circuit court for its ruling. Sometimes they decide not to entertain oral arguments and in Waterhouse's case they did because of his claim of "actual innocence." I assume they are going to do this on all active warrants and I think this why the Governor's office doesn't issue more than 1 warrant at a time. Maybe there is some behind the scenes communication going on between the Executive and Judicial branch.

I am not aware of any other state Supreme court that does this.

Posted by: DaveP | Feb 14, 2012 3:30:16 PM

If this is all true, then perhaps it's up to the Florida legislature to fix the situation and, among other things, leave the signing of death warrants to Circuit Court judges as is the case in Virginia and Texas.

Posted by: alpino | Feb 14, 2012 3:37:35 PM

According to the Florida Commission on Capital Cases, the last court action in this case was an appeal filed on 8/10/05 from a denial at state circuit court. The FSC affirmed this on 10/13/06 and I don't believe Waterhouse's attorneys sought certiorari. Nothing until the warrant was signed 5 1/2 years later.

Posted by: DaveP | Feb 14, 2012 3:40:58 PM


I have discussed that exact issue with former Governor Bush and former AG McCollum in person. They both were vague with their answers and I never hear anyone within the powers that be discuss it. The only issue that is presented over and over is the unanimous jury verdict at sentencing.

The bottom line is that there is a reluctance in Florida to carry it out. I believe 15 inmates died on death row during the Crist administration compared to 5 executions. What a joke.

Posted by: DaveP | Feb 14, 2012 3:46:59 PM

um, davep pretends that the FSC just orders a new round of appeals out of whole cloth after a death warrant is signed. Um, please see Fl. R. Crim. Pr. 3.581(e)(2) & (h) & Fl. R. Crim. Pr. 3.852(h)(3). Capital defendants are entitled to seek new & previously undisclosed public records (basically, the public records process starts again w/ expedited dates). New info may serve as the basis for pc claims in a successive motion. The briefing schedule is set by the FSC at the start of the process so that any successive 3.850 motions filed by defendant will be heard/handled before the execution deadline.

Posted by: ssb | Feb 14, 2012 4:21:39 PM


My main argument is that there is no limit to how many state post conviction appeals in Florida. The Waterhouse case is a good example. His recent appeal was almost a mirror image of the one in 2006 disposed of by the FSC. Did you watch the oral arguments? I will bet when they got back in chambers they were asking themselves why they granted the hearing.

Read the new opinion on William Van Poyck filed yesterday. Now if Gov Scott signs a warrant, do you think that another state appeal is warranted? What issue has not been resolved as of now?

Posted by: DaveP | Feb 17, 2012 7:35:18 AM

ssb --

Assuming everything you say is correct, it is not a justification of infinite appeals but an illustration of how foolish Florida is to allow them.

Posted by: Bill Otis | Feb 17, 2012 12:29:36 PM

I'm a victim and have been watching as the killer of my sister, Angela Crowley sits on death row laughing at the delays in his execution. My contact with the govenors office and the victim services have produced no real answers. I have been told that a clemency investigation must take place first. I have not been given an answer if the investigation in ongoing, or if it has even started. My sisters case, Happ vs. Florida was returned to the state in 10/11. It is now coming up on eight months with no action or answers. To say the least frustration, and just plain mad don't really describe our feelings. My mother and most of her generation in our family have passed away, along with a brother and cousins. Happ is outliving us all. If you should find some answers, please let me know.

Posted by: Chris Crowley | May 30, 2012 1:29:18 PM

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