IN THE SUPREME COURT OF

CASE NO. SC08-148

______JOHN MARQUARD

Appellant,

v.

STATE OF FLORIDA

Appellee.

______

ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT FOR ST. JOHN’S COUNTY, STATE OF FLORIDA

______AMENDED INITIAL BRIEF OF APPELLANT ______

______Ali A. Shakoor Florida Bar No. 669830 Assistant CCRC-Middle CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 3801 Corporex Park Drive Suite 210 Tampa, FL 33619 (813) 740-3544 COUNSEL FOR APPELLANT

TABLE OF CONTENTS TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... iv

STANDARD OF REVIEW ...... 1

REQUEST FOR ORAL ARGUMENT ...... 1

PROCEDURAL HISTORY ...... 1

SUMMARY OF THE ARGUMENTS ...... 3

ARGUMENT I ...... 3

ARGUMENT II ...... 16

ARGUMENT III ...... 17

CONCLUSION AND RELIEF SOUGHT ...... 22

CERTIFICATE OF SERVICE ...... 23

CERTIFICATE OF COMPLIANCE ...... 24

i TABLE OF AUTHORITIES

Baze v. Rees, 217 S.W.3d 207 (Ky. 2006) ...... 11 Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.2004) ...... 3 Diaz v. State, 945 So.2d 1136 (Fla. 2006) ...... 17,20 Gregg v. Georgia, 428 U.S. 153, 173 (1976) ...... 3,4 Hill v. McDonough, 126 S.Ct. 2096 (2006) ...... 16 In re Kemmler, 136 U.S. 436, 447 (1890) ...... 4 Lightbourne v. McCollum, 969 So.2d 326, (Fla. 2007) ...... 11 Marquard v. Florida, 115 S.Ct. 946 (1995) ...... 1 Marquard v. Secretary for Dept of Corrections, 429 F.3d 1278 (11th Cir. 2005) ...... 2 Marquard v. State, 641 So.2d 54 (Fla. 1994) ...... 1 Marquard v. State, 850 So.2d 417 (Fla. 2002) ...... 2 Rolling v. State, 944 So.2d 176, (Fla. 2006) ...... 20 Roper v. Simmons, 543 U.S. 551, 561 (2005) ...... 3 Rutherford v. State, 940 So.2d 1112, (Fla. 2006) ...... 20 Schwab v. State, 973 So.2d 427, (Fla. 2007) ...... 11 Stephens v. State, 748 So.2d 1028 (1999) ...... 1 State v. Carey, 273 Neb. 495, 730 N.W. 2d 563, (2007) ...... 16 Trop v. Dulles, 356 U.S. 86, 100-01 (1958) ...... 4

ii Other Cites: Baze v. Rees, 2008 WL 1733259, (2008) ...... 17 28 U.S.C. section 1983 ...... 18 Section 27.702, Florida Statute (2006) ...... 16 28 U.S.C. section 1983 ...... 18

iii STANDARD OF REVIEW

Mr. Marquard’s appeal involves mixed issues of law and fact and are to be

reviewed de novo by this Court. Stephens v. State, 748 So.2d 1028 (1999).

REQUEST FOR ORAL ARGUMENT

The resolution of the issues in this action will determine whether Mr.

Marquard lives or dies. This Court has allowed oral argument in other capital

cases in a similar procedural posture. A full opportunity to air the issues through

oral argument would be appropriate in this case, given the seriousness of the

claims involved and the fact that a life is at stake. Mr. Marquard accordingly

requests that this Court permit oral argument.

STATEMENT OF THE CASE AND FACTS

I. PROCEDURAL HISTORY

John Marquard was convicted at a of first-degree and sentenced to death. Mr. Marquard unsuccessfully appealed his first degree murder and death sentence. Marquard v. State, 641 So.2d 54 (Fla. 1994). Mr.

Marquard filed a Petition for Writ of Certiorari to the Supreme Court which was denied. Marquard v. Florida, 115 S.Ct. 946 (1995).

Mr. Marquard then pursued post-conviction relief in state court. On May 12,

1999, the trial court issued an order on Mr. Marquard’s amended motion to vacate judgment of conviction and sentence. The trial court granted an evidentiary

1 hearing on Claims one and two, which were ineffective assistance of counsel

claims. The court held Claims three, four, five, and eight were procedurally

barred. The court denied Claims six and seven.

An evidentiary hearing was held on Claims one and two on November 16

and 18, 1999. The court denied relief. Mr. Marquard appealed to the Florida

Supreme Court but was denied relief. Marquard v. State, 850 So.2d 417 (Fla.

2002).

Mr. Marquard filed a petition for habeas corpus in federal court. The district

court denied the amended petition on April 6, 2004 with prejudice as to all grounds

except those listed in paragraph 2. On January 14, 2005, the district court entered a

denial of Mr. Marquard’s writ. An appeal was filed with the Eleventh Circuit

Court of Appeals on May 24, 2005. On November 10, 2005, Mr. Marquard’s

appeal to the Eleventh Circuit Court of Appeals was denied. Marquard v.

Secretary for Dept of Corrections, 429 F.3d 1278 (11th Cir. 2005). This was

followed by a Petition for Writ of Certiorari to the United States Supreme Court

which was filed on March 20, 2006. The Petition for Writ of Certiorari was denied

on June 5, 2006. Mr. Marquard filed a Successive Motion for Postconviction

Relief on September 11, 2007. The state court denied the motion by written order

on January 3, 2008. This appeal follows.

2 II. SUMMARY OF THE ARGUMENT

A. NEWLY DISCOVERED EVIDENCE PROVES EXECUTION BY VIOLATES THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND THEREFOR MR. MARQUARD’S SENTENCE OF DEATH IS UNCONSTITUTIONAL.

B. THE FLORIDA STATUTE WHICH PROHIBITS MR. MARQUARD’S COUNSEL FROM FILING A SECTION 1983 CLAIM ON HIS BEHALF DEPRIVES MR. MARQUARD OF DUE PROCESS AND EQUAL PROTECTION IN VIOLATION OF THE FLORIDA AND FEDERAL CONSTITUTION.

C. THE NEW ABA REPORT DEMONSTRATES THAT THE FLORIDA DEATH PENALTY SYSTEM IS INTRINSICALLY FLAWED AND UNCONSTITUTIONAL IN ITS CURRENT STATE.

ARGUMENT I.

NEWLY DISCOVERED EVIDENCE PROVES EXECUTION BY LETHAL INJECTION VIOLATES THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND THEREFOR MR. MARQUARD’S SENTENCE OF DEATH IS UNCONSTITUTIONAL.

The Eighth Amendment to the United States Constitution prohibits the

“unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S. 153, 173

(1976)(plurality opinion), and procedures that create an “unnecessary risk” that such pain will be inflicted. Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.2004).

The Eighth Amendment has been construed by the Supreme Court of the United

States to require that punishment for crimes comport with “the evolving standards

of decency that mark the progress of a maturing society.” Roper v. Simmons, 543

3 U.S. 551, 561 (2005)(quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality

opinion). Executions that “involve the unnecessary and wanton infliction of pain,”

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion), or that “involve

torture or a lingering death,” In re Kemmler, 136 U.S. 436, 447 (1890), are not permitted.

B. Florida’s Lethal Injection Protocol creates an unnecessary risk of

excessive pain and therefor violates the Eighth Amendment’s command that

“cruel and unusual punishment [not be] inflicted.” U.S. Const. amend. VIII.

Florida’s lethal injection protocol is defective for the following reasons:

(1) The FDOC screening of members of the execution team is

inconsistent and unreliable and thus has created an undue risk of

unnecessary pain during the execution procedure.

(2) The FDOC has failed to ensure or implement meaningful training,

supervision and oversight of the execution team which has created an undue

risk of unnecessary pain during the execution procedure.

(3) The FDOC has failed to implement or ensure consistent and reliable

record keeping which has created an undue risk of unnecessary pain during

the execution procedure and lack of meaningful oversight to ensure that

executions are carried out in a lawful manner.

4 (4) The FDOC has allowed improper mixing, preparation and

administration of the lethal chemicals which has created an undue risk of

unnecessary pain during the execution procedure.

(5) The FDOC execution chamber is an inadequate and poorly designed

facility which has created an undue risk of unnecessary pain during the

execution procedure.

(6) The FDOC has failed to ensure that properly trained, certified and

licensed medical professionals oversee the lethal injection procedure and this

failure has created an undue risk of unnecessary pain during the execution

procedure.

(7) The FDOC has failed to ensure a sufficient protocol to reasonably

manage complications inherent in the lethal injection process.

Angel Diaz

C. Newly discovered evidence of the lethal injection Protocol adopted

secretly in August of 2006 and not made public until October 2006, the

December 13, 2006 execution of Angel Diaz and the March 1, 2007 report

by the Commission establishes that Florida’s use of lethal injection as a

means of execution violates the Eighth Amendment’s prohibition on the

unnecessary and wanton infliction of pain contrary to contemporary

standards of decency.

5 On December 13, 2006, Angel Diaz was executed by the State of Florida.

Attorney Neal Dupree, witnessed the execution and described the failures in an affidavit. The execution was carried out under a lethal injection protocol adopted in secret on August 16, 2006. Public knowledge of the Protocol did not occur until counsel for a condemned inmate learned of the Protocol on October 17, 2006, on

the eve of the inmate’s execution. Mr. Diaz’s was the third execution since the

public was made aware of the Protocol.

Newspaper accounts of Mr. Diaz’s execution describe the execution as

follows:

[Mr. Diaz] was executed by lethal injection Wednesday, grimacing in

pain before dying 34 minutes after receiving the first dose of

chemicals.

Ron Word, “Man Executed for Miami bar slaying takes 34 minutes to die,”

Gainesville Sun, December 13, 2006 (emphasis added).

He appeared to move for 24 minutes after the first injection. His eyes

were open, his mouth opened and closed and his chest rose and fell.

The Associated Press, “Connecticut Escapee Executed in Florida,” The Hartford

Courant, December 13, 2006.

What happened to him next looked agonizing. Grimacing, Diaz took 34 minutes to die from the drugs pumped through him. At times he seemed to be squinting and at other times he appeared to be flexing his jaw.

6

Phil Long and Marc Caputo, “Lethal injection takes 34 minutes to kill inmate,”

Miami Herald, December 14, 2006.

Angel Diaz winced, his body shuddered and he remained alive for 34 minutes, nearly three times as long as the last two executions. Department of Corrections officials said they had to take the rare step of giving Diaz a second dose of drugs to kill him. * * * Twenty-six minutes into the procedure, Diaz’s body suddenly jolted. * * * Corrections officials acknowledged that 34 minutes was an unusually long time but said no records are kept that would tell if it’s the longest ever in state history.They were not sure how many other times a second dose was needed.Gretl Plessinger, a DOC spokesperson, said it’s unknown at what times the first and second doses were given because those records are not kept.Chris Tisch and Curtis Krueger, Executed Man Takes 34 Minutes To Die, St. Petersburg Times, December 14, 2006.

Immediately following the execution, a representative of the Department of Corrections (DOC hereinafter) stated:

He had liver disease, which required them to give him a second dose of the lethal chemicals. It was not unanticipated. The metabolism of the drugs to the liver is slowed.

The Associated Press, December 13, 2006 (emphasis added). Shortly thereafter,

Governor Bush affirmed the representations of the Department of Corrections:

As announced earlier this evening by the Department, a preexisting medical condition of the inmate was the reason tonight’s procedure took longer than recent procedures carried out this year.

Ron Word, “Execution of Fla. inmate takes 34 min.,” The Times-Picayune, December 13, 2006.

7 On December 15, 2006, the medical examiner who performed an autopsy of

Mr. Diaz’s body publicly reported his preliminary findings:

''The main problem with the conduct of this execution procedure was that the fluids to be injected were not going into a vein, but were going into small tissues in the arm,'' Hamilton said. His examination found ''evidence of chemical damage'' at the injection wound for six inches above and below the right elbow, and nearly the same pattern around the left elbow.

Gary Fineout and Marc Caputo, “Governor Bush Orders Hold on Executions,”

Miami Herald, December 16, 2006 (emphasis added). As a result of the medical

examiner’s findings, the Governor suspended all executions in Florida:

Gov. has once again suspended all executions in Florida after an autopsy showed needles tore through an inmate's veins Wednesday night, causing chemicals to severely burn his flesh.

Chris Tisch, “Governor Bush Halts Executions,” St. Petersburg Times, December

16, 2006 (emphasis added)

The Governor ordered the creation of a commission to examine the state's lethal injection process, with a final report due by March 1, 2007. After

numerous hearings in which it heard sworn testimony, the Commission reviewed

documents, heard testimony and issued its Report. (Report Attached as exhibit A)

The Commission heard testimony and determined:

(A) The execution team failed to properly obtain venous access,

failed to administer the chemicals properly, and failed to follow

FDOC guidelines, which were also inadequate;

8 (B) FDOC’s Protocol was insufficient to deal with complications

during an execution;

(C) FDOC’s training and guidelines were inadequate;

(D) FDOC leadership failed to ensure adequate communication or guidance during the actual execution.

(E) The execution chamber is poorly designed. Id. at 9-13

Physician members of the Commission also found that because

“authoritative bodies in this country are tending to require more sophisticated

medical techniques and personnel to administer . . . lethal injection,” they

“conclu[de] that . . . the potential unreliability of lethal injection cannot be fully

mitigated.” Id. at 15.

The Report created by the Governor’s Commission on Administration of Lethal Injection provides substantial evidence of how flawed and inept Florida’s capital execution protocols have been. The Commission’s detailed Report shows the physical and mental peril Mr. Marquard would face if he were executed in violation of his Eighth Amendment rights.

Ian Deco Lightbourne

D. Based on the botched execution of Angel Diaz, a death row

Inmate named Ian Deco Lightbourne filed an “All Writs Petition” in the Florida

Supreme Court which remanded the case to the Fifth Circuit Honorable Judge

9 Carven Angel. Judge Angel held hearings and issued an order based on the Angel

Diaz execution, and the Florida Department of Correction’s response to such. (See

Ian Deco Lightbourne Order, Attachment as exhibit B). Judge Angel held hearings throughout the early part of the summer of 2007 on May 18, May 21, June 18, and

July 17-22. Id. at 1. Judge Angel issued a temporary stay of Mr. Lighbourne’s

capital proceeding and ruled:

Florida’s lethal injection procedures must be compatible with evolving standard of decency and compatible with standards that mark the progress of a maturing society. The process must be consistent with notions of dignity of men and, to that end, the State must establish a procedure that is not likely to result in the unnecessary or wanton infliction of pain. Counsel for the Department of Corrections identified modifications to be made to the May 9 procedures. The Court finds that those identified modifications will be beneficial to the process, and further directs the Department of Corrections modify the procedures to comport with the Court’s oral statements, including stating with particularity the qualifications, training, licensure, and credentials for each member of the execution team that is necessary to perform the various technical functions, such as starting intravenous lines, that are part of the lethal injection procedure; setting out the training that shall be required for each of the designated executioners, and specifically training for contingencies that might arise; creating checklists for each function performed by execution and technical team members, correcting scrivener’s errors; setting time frames and providing for periodic review of the procedures by the Department; providing for certification of the readiness of the Department to carry out an execution; and clearly setting forth in plain language that any observed problems or deviations from the procedures should be brought

10 immediately to the attention of the warden in charge of the team. Id. at 2-3.

This Stay Order was signed by the Honorable Judge Carven Angel on

July 31, 2007, and provides further new evidence of Florida’s flawed lethal injunction procedures. However, the circuit court in Lightbourne subsequently rescinded its Stay Order and denied relief. The Florida Supreme Court denied

Lightbourne’s lethal injection claims on November 1, 2007. Lightbourne v.

McCollum, 969 So.2d 326, (Fla. 2007). Similar to Lightbourne, the Florida

Supreme Court denied the lethal injection claims of Mark Dean Schwab, who had

a Stay denied while under a state issued death warrant. Schwab v. State, 973 So.2d

427, (Fla. 2007). However, the United States Supreme Court subsequently issued a Stay in Schwab’s case as it was resolving the lethal injection issue in Baze v.

Rees,217 S.W.3d 207 (Ky. 2006).

New Lethal Injection Procedures

E. Subsequent to the Stay issued in State v. Lightbourne, the Florida

Department of Corrections issued a new set of lethal injection protocols titled

Execution By Lethal Injection Procedures, Effective for executions after August 1,

2007. (Attached as exhibit C). Despite the recommendations of the Commission

to evaluate the cocktail used during the procedure, (Report at pg. 13) the same

three solution cocktail used to torture and kill Angel Diaz, is still being approved

for use in future executions in this state. (Protocols at pgs. 6-7) Also, although the

11 Commission recommended that an FDLE agent be placed in the Chemical Room and the Witness Room to document and log the execution in 30 second intervals

(Report at pg. 10), the new procedures only require the log to be documented every two minutes and fails to place an FDLE agent in the Witness Room. (Protocols at pg. 5) The Commission also made a recommendation that the Florida Department

of Corrections “develop and implement procedures to insure that a closed circuit

monitoring of the inmate in the Death Chamber by the execution team members in

the Chemical Room. This should include at a minimum the condemned inmates

face and IV access points. No recordings of the closed circuit monitoring should

be made.” (Report at pg. 11) Of course, this recommendation is in response to the

anguish displayed on Angel Diaz’s face during his execution, and the disputed

testimony to the meaning of his grimacing and agonizing. The new protocols do

not mandate or recommend the use of a closed circuit monitoring system despite

the Commission’s recommendations.

Judge Carven D. Angel’s Order in State v. Ian Deco Lightbourne

(Attached as exhibit B) made a number of recommendations to modify the

procedures used in the lethal injection process. However, the new protocols which

went into effect one day after the Lightbourne Order was signed, failed to incorporate recommendations from the Order such as “stating with particularity the qualifications, training, licensure, and credentials for each member of the execution

12 team that is necessary to perform the various technical functions, such as starting intravenous lines, that are part of the lethal injection procedure, and setting out the training that shall be required for each of the designated executioners.” (Order at

pg 3) The new protocols currently in place will certainly violate Mr. Marquard’s

Eighth Amendment rights and are not “compatible with evolving standards of decency and compatible with standards that mark the progress of a maturing society.” Trop at 100-101.

A further review of the amended protocols reveals the following defects:

(1) The Florida Department of Corrections screening of members of the execution team is inconsistent and unreliable and thus has created an undue risk of unnecessary pain during the execution procedure. For example, the new protocols do not describe the manner in which the “team warden” who is in charge, will select the execution team members. The warden who was in charge for the last four executions by lethal injection, Warden Bryant, testified at the Lightbourne hearing. At the hearing, Warden Bryant described the following procedure: He is taken by a third person (whose name he stated he could not disclose per the confidentiality statute) to the place of employment of the “medically qualified persons.” He is shown their medical licenses and makes sure that they are valid, but admits that their names are blocked out. Even the Warden does not know who the “medically qualified persons” are. The unidentified third person literally points out to the Warden who the individuals are who will be serving as the “medically qualified persons” for the upcoming execution. Then, when the “medically qualified persons” arrive at the prison, Warden Bryant is able to recognize them by sight as being the same people who were pointed out to him.

13

There is nothing in the August 1, 2007 protocols to suggest that the

“team warden,” who by definition in the protocol “has the final and ultimate decision making authority in every aspect of the lethal injection process,” will know the identity of all of the members of his execution team. The new protocols still do not require the “team warden” to obtain the employment records, error rates, and proficiency testing of the execution team members.

(2) The FDOC has failed to ensure or implement meaningful training, supervision and oversight of the execution team which has created an undue risk of unnecessary pain during the execution procedure. For example, the August 1 2007 protocols state that there should be at a minimum, quarterly training sessions where all members of the execution team will be present. The protocols call for a written record of these training sessions, but do not state what should be included in the written record. Under the new protocols, it appears that it would be sufficient for the “team warden” to state that a training occurred, without documenting who was present and what training they actually completed.

(3) The FDOC has failed to implement or ensure consistent and reliable record keeping which has created an undue risk of unnecessary pain during the execution procedure and lack of meaningful oversight to ensure that executions are carried out in a lawful manner. For example, while the new protocols do require some written records of activities, there is still a not written record of when the lethal chemicals begin to flow, nor is there a written printout of the data from the heart monitors.

(4) The FDOC has failed to ensure that properly trained, certified and licensed medical professionals oversee the lethal injection procedure and that a bispectral index monitor be used and this failure has created an undue risk of unnecessary pain during the execution procedure. As noted above, not even the Warden will know the identity of all of the members of his execution team. The employment records, error rate, and proficiency testing are not required or requested, nor is up to date medical equipment to monitor levels of consciousness required . In addition, the FDOC has dug in its heels and continues to mandate the use of pancuronium bromide, a paralytic, the only purpose for which it is used is

14 for aesthetic concerns for the observers. This purpose does not warrant the undue risk that pancuronium may cause a person to experience excruciating pain while he suffocates to death, unable to breath, speak or move.

(5) The FDOC has failed to ensure a sufficient protocol to reasonably manage complications inherent in the lethal injection process. For example, there is nothing in the new protocols that defines a procedure for notification to the inmate or the inmate’s counsel should the medical examination reveal any potential complications with venous access or any other aspect of the lethal injection other than to say that the “team warden” will “resolve the issue.” Nothing in the July 31, 2007 protocols addresses the possible remedies for complications noted in the medical examinations that take place a week prior to the execution. The protocols merely state that the “team warden” will consult with the other team members that performed the evaluation and “conclude what is the more suitable method of venous access (peripheral or femoral) for the lethal injection process given the individual circumstances of the condemned inmate based on all information provided.” In addition, there is no provision for the inmate to have his own designated independent physician or medically qualified professional present for the examination.

(6) The provision for Periodic Review and Certificate from the Secretary is insufficient to insure that there will not be a risk of unnecessary pain during the execution procedure. For example, all that is required is that the Secretary of the Department of Corrections certify to the Governor that “the Department is adequately prepared to carry out executions by lethal injection.” The Certification is not required to contain how the lethal injection procedure was reviewed, what aspects the Secretary considered in his review of the procedures, or how the Secretary verified that he does in fact have all the “necessary procedures, equipment, facilities, and personnel in place...” In addition, the Certification is to be provided to the inmate and the inmate’s counsel, after the review has been completed. There is no provision for the inmate or the inmates counsel’s to be present during the actual reviewing process and certification.

Mr. Marquard is in grave danger of having his Eighth Amendment rights violated

because the new lethal injection procedures are wholly inadequate and simply do

not pass constitutional muster.

15 F. In conclusion, the current lethal injection process is wholly

flawed and unconstitutional. New evidence such as the death of Angel Diaz, the

ensuing Lightbourne Order, the Commission’s Report, and the insufficiency of the

new Florida Department of Correction Procedures demonstrate that Mr. Marquard

is entitled to a hearing on his claims. The recent decision in Baze v. Rees, 2008

WL 1733259, (2008) does not diminish Mr. Marqurad’s argument. The torture of

Angel Diaz, and the inadequate new protocols clearly demonstrates that John

Marquard is subject to “substantial risk of serious harm”. Baze at 2. “Concerns for finality to a state’s judgements do not outweigh the absolute need to protect against the deprivation of an individual’s constitutional rights which might invalidate his capital sentence.” State v. Carey, 273 Neb. 495, 730 N.W. 2d 563, (2007).

ARGUMENT II

THE FLORIDA STATUTE WHICH PROHIBITS MR. MARQUARD’S COUNSEL FROM FILING A SECTION 1983 CLAIM ON HIS BEHALF DEPRIVES MR. MARQUARD OF DUE PROCESS AND EQUAL PROTECTION IN VIOLATION OF THE FLORIDA AND FEDERAL CONSTITUTION.

Section 27.702, Florida Statute (2006) prohibits CCRC counsel from filing any civil rights claims. In Hill v. McDonough, 126 S.Ct. 2096 (2006), the Supreme

Court held that a section 1983 suit was an additional but not exclusive avenue to challenge lethal injection. In Diaz v. State, 945 So.2d 1136 (Fla. 2006), the

Florida Supreme Court expressly held that the prohibition against CCRC from

16 filing an action under 28 U.S.C. section 1983 to attack the constitutionality of lethal injection was not unconstitutional facially and as applied, because Diaz could have filed the claim in his federal habeas. However, Mr. Marquard has not filed a previous claim where he has raised this claim as it is not yet exhausted and he may be unable to challenge lethal injection in a successive habeas petition due

to the constraints of AEDPA. Mr. Marquard and any other similarly situated death

row inmate should not have their right to challenge the constitutionality of lethal

injection in a federal proceeding impaired or extinguished because of the arbitrary

constraints of section 27.702 and AEDPA. The statutory limitation on CCRC is

arbitrary and capricious in its deprivation of a fundamental due process and equal

protection right entitled to Mr. Marquard.

ARGUMENT III

THE NEW ABA REPORT DEMONSTRATES THAT THE FLORIDA DEATH PENALTY SYSTEM IS INTRINSICALLY FLAWED AND UNCONSTITUTIONAL IN ITS CURRENT STATE.

A. Background about the ABA Report

The American Bar Association(ABA) published Evaluating Fairness

and Accuracy in State Death Penalty Systems: The Florida Death Penalty

Assessment Report, An Analysis of Florida’s Death Penalty Laws, Procedures, and

Practices in September of 2006. The ABA has always believed that “[f]airness

17 and accuracy together form the foundation of the American criminal Justice system” and that “these goals are particularly important in cases in which the death penalty is sought.” (ABA Report on Florida at pg. 1) In 1997, the ABA responded to the growing concern that the capital jurisdictions did not provide fairness and accuracy in the administration of justice and called for a moratorium on executions until the states had an opportunity to study and implement changes to their systems.1 Id. Florida did not heed the ABA’s advice and no moratorium was

imposed, nor any comprehensive study conducted. Instead, Florida continued to

impose the death penalty and carry out executions.

The ABA’s assessment team was charged with “collecting and

analyzing various laws, rules, procedures, standards and guidelines relating to the

administration of the death penalty.” Id.2 The team identified a number of the

1In 2001, the ABA created the Death Penalty Moratorium Implementation Project to, among other things, collect and monitor data on death penalty developments, as well as analyzing responses from government and courts to death penalty issues. Id. And, “[t]o assist the majority of capital jurisdiction that have not yet conducted comprehensive examinations of their death penalty systems, the Project decided in February 2003 to examine several U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which they achieve fairness and provide due process.” Id. Florida was one such jurisdiction.

2As set forth in the report’s table of contents, the team concentrated on thirteen distinct areas: 1) death row demographics, 2) DNA testing and testing and preservation of biological evidence; 3) law enforcement tools and techniques; 4) crime laboratories and medical examiners; 5) prosecutorial professionalism; 6) defense services; 7) direct appeal process; 8) state postconviction proceedings; 9)

18 areas in the report “in which Florida’s death penalty system falls short in the effort to afford every capital defendant fair and accurate procedures” Id. at iii.

Recommendations were made to assist Florida in fixing the system. But, the team cautioned that the apparent harms in the system “are cumulative” and must be considered so; “problems in one area can undermine sound procedures in others.”

Id. at iii-iv. A review of the areas identified in the report as falling short makes

apparent that Florida’s death penalty scheme is deficient for many of the same

reasons the schemes at issue in Furman were found to be unconstitutional.3 Death sentences, like Mr. Marquard’s, are a product of an arbitrary and capricious system. Who is executed in Florida is determined by a myriad of factors unrelated to the facts of the crime or the character of the defendant.

clemency; 10) jury instructions; 11) judicial independence, 12) racial and ethnic minorities; and 13) mental retardation and mental illness.

3For example, the opinions written in Furman noted the same evidence of arbitrary factors unrelated to the crime or the defendant’s character that were at work in the capital process that is set forth in the ABA Report. Furman, 408 U.S. at 256 n. 21 (whether counsel timely objected to error was on occasion a decisive, though arbitrary factor in the imposition of a death sentence); Id. at 290 (the manner in which retroactivity rules operate injected arbitrariness); Id. at 293, 309- 10, 313 (the number of executions in comparison to the number of suggested a lottery); Id. at 364-66 (evidence that racial prejudices and/or classism and/or sexism infected sentencing decisions); Id. at 366-67 (likelihood that an innocent may be executed suggested arbitrariness); Id. at 368 n. 158 (the failure to apply scientific developments in criminal cases fast enough to enhance reliability of outcome of process created arbitrary results).

19 Mr. Marquard’s case is unlike prior cases where the Florida Supreme

Court ruled that the Report from the American Bar Association to the effect that the death penalty was cruel and unusual punishment was not newly discovered evidence in violation of the Eighth Amendment of the United States Constitution warranting postconviction relief. See, Rutherford v. State, 940 So.2d 1112, (Fla.

2006), Rolling v. State, 944 So.2d 176, (Fla. 2006), and Diaz v. State, 945 So.2d

1136, (Fla. 2006). Rather than claiming an Eighth Amendment violation, Mr.

Marquard is asserting that the new ABA Report is newly discovered evidence demonstrating that the current capital sentencing system in Florida has specifically abridged his Due Process rights in violation of the Fifth and Fourteenth

Amendments of the United States Constitution.

B. Florida – An Arbitrary and Capricious Death Penalty System

1. The Exonerated

In Florida, since 1972, twenty-two (22) people have been exonerated and another individual has been exonerated posthumously, while sixty-one (61) people have been executed. (ABA Report at iv, 8) (“[T]he proportion exonerated exceeds thirty percent of the number executed.”). “Since the reinstatement of the death penalty in 1972, Florida has led the nation in death row exonerations.” Id. at

45. There has been no effort to learn what defects and flaws have led to this. The

20 number of men released from Florida’s death row with their presumption of innocence restored shows a broken system that violates Furman.

C. Conclusion

When all of the factors identified are fully explored, it is clear that the

Florida capital process does not deliver and/or produce sufficiently reliable results under the Eighth Amendment. The conclusion is inescapable - “it smacks of little more than a lottery system.” Furman, 408 U.S. at 293 (Brennan, J., concurring).

“[T]here is no meaningful basis for distinguishing the few cases in which it is

imposed from the many cases in which it is not” Furman, 408 U.S. at 313 (White,

J., concurring).

The Florida capital process cannot “assure consistency, fairness, and rationality” and it cannot “assure that sentences of death will not be "wantonly" or

"freakishly" imposed.” Proffitt, 428 U.S. at 259-60. In light of the botched

execution of Angel Diaz, and the failure of the state to bring its lethal injection

procedure in line with constitutional requirements, Florida’s death penalty statute

violates the Eighth Amendment of the United States Constitution. Moreover, the

denial of the ability to file a Section 1983 claim, and the failure of the System to

comply with ABA standards calls for Mr. Marquard’s sentence of death to be

vacated.

21 CONCLUSION AND RELIEF SOUGHT

In light of the facts and arguments presented above, Mr. Marquard contends the trial court erred. Mr. Marquard moves this Honorable Court to:

1. Grant Mr. Marquard an opportunity for oral argument.

2. Vacate the sentence of death, and sentence him to life

imprisonment.

22 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Amended

Initial Brief of Appellant has been furnished by United States Mail, first class postage prepaid, to all counsel of record on May 1st , 2008.

______Ali A. Shakoor Florida Bar No. 669830 Assistant CCRC-M CAPITALCOLLATERAL REGIONAL COUNSEL - MIDDLE 3801 Corporex Park Drive, Suite 210 Tampa, FL 33619 (813) 740-3544 Attorney for Defendant Copies to:

The Honorable Robert K. Mathis John Marquard Circuit Court Judge DOC #122995; P5224-S 4010 Lewis Speedway Union Correctional Institution P.O. Drawer 300 7819 NW 228th Street St. Augustine, Florida 32085-0300 Raiford, Florida 32026-4450

Kenneth S. Nunnelly Assistant Attorney General Office of the Attorney General 444 Seabreeze Boulevard Fifth Floor Daytona Beach, FL 32118-3951

John Tanner Assistant State Attorney Office of the State Attorney 4010 Lewis Speedway, Rm 252 St. Augustine, Florida 32084-2800

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CERTIFICATE OF COMPLIANCE

I hereby certify that a true copy of the foregoing, Amended Initial

Brief of Appellant was generated in a Times New Roman 14 point font, pursuant to Fla. R. App. P. 9.210.

______Ali A. Shakoor Florida Bar No. 669830 Assistant CCC CAPITAL COLLATERAL REGIONAL COUNSEL - MIDDLE 3801 Corporex Park Drive, Suite 210 Tampa, FL 33619 (813) 740-3544 Attorney for Defendant

24