IN THE SUPREME COURT OF FLORIDA

CASE NO. SC 13-425

LARRY E. MANN, Appellant, Death Warrant Signed: Execution v. Scheduled For April 10, 2013 At 6:00 pm STATE OF FLORIDA

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

MARIE-LOUISE SAMUELS PARMER Assistant CCRC Florida Bar No. 0005584

MARIA E. DELIBERATO Assistant CCRC Florida Bar No. 664251 Capital Collateral Regional Counsel – Middle Region 3801 Corporex Park Dr., Suite 210 Tampa, FL 33619 (813)740-3544

PRELIMINARY STATEMENT

This is an appeal of the circuit court’s summary denial of Mr. Mann’s

Successive Motion for Post Conviction Relief brought pursuant to Florida Rule of

Criminal Procedure 3.851(h)(5) and 3.851(e)(2).

Citations shall be as follows: The record on appeal from Mr. Mann’s first trial proceedings in 1981 shall be referred to as “TR 1981” followed by the appropriate volume and page numbers. The record on appeal from Mr. Mann’s

1990 resentencing shall be referred to as “TR 1990” followed by the appropriate volume and page numbers. The post conviction record on appeal shall be referred to as “PCR” followed by the appropriate volume and page numbers. The record on appeal from the denial of the post conviction proceedings after the warrant was signed shall be referred to as “WARRANT PCR” followed by the appropriate volume and page numbers. All other references will be self-explanatory or otherwise explained herein.

i

REQUEST FOR ORAL ARGUMENT

Mr. Mann has been sentenced to death and is scheduled to be executed in 16 days. The resolution of issues involved in this action will determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar posture. A full opportunity to air the issues through oral argument would be appropriate in this case, given the seriousness of the claims at issue and the stakes involved. Mr. Mann, through counsel, respectfully requests this Court grant oral argument.

ii

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ...... i

REQUEST FOR ORAL ARGUMENT ...... ii

TABLE OF CONTENTS ...... iii

TABLE OF AUTHORITIES ...... iv

STATEMENT OF THE CASE ...... 1

PROCEDURAL HISTORY ...... 1

STATEMENT OF FACTS ...... 6

Juror Unanimty Claim ...... 6

Arbitrary Warrant ...... 8

Public Records ...... 10

Florida Department of Corrections ...... 10

Pinellas County State Attorney’s Office ...... 13

Office of the Governor’s ...... 14

Office of the Attorney General...... 16

Florida Senate District 20 and Florida State House District 65 ...... 17

Martinez Claim ...... 17

SUMMARY OF ARGUMENT ...... 18

STANDARD OF REVIEW ...... 21

iii

ARGUMENT I ...... 21

FLORIDA’S DEATH PENALTY STATUTE, WHICH ALLOWS A NON- UNANIMOUS VERDICT, IS UNCONSTITUTIONAL UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND VIOLATES EVOLVING STANDARDS OF DECENCY WHICH MARK THE PROGRESS OF A MATURING SOCIETY. THE POST CONVICTION COURT ERRED IN SUMMARILY DENYING THIS CLAIM...... 21

A. Societal standards show that Florida is an outlier with respect to its capital sentencing statute...... 25

B. Controlling precedents and the Court=s understanding and interpretation of the Eighth Amendment=s text, history, meaning and purpose demonstrates that Florida=s non-unanimous jury requirement does not comport with the 8th Amendment=s evolving standards of decency ...... 33

C. Florida is also an outlier in the international arena by allowing juror majority death sentences and with its stunning increase in number of death sentences handed down ...... 37

ARGUMENT II ...... 44

FLORIDA’S DEATH WARRANT SELECTION PROCESS IS UNCONSTITUTIONAL UNDER THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. THE POST CONVICTION COURT ERRED IN SUMMARILY DENYING THIS CLAIM ...... 44

A. The Arbitrary imposition of the death penalty is prohibited by the Eighth Amendment. Florida’s arbitrary warrant selection process is akin to the arbitrary imposition of the death penalty and is similarly prohibited by the Eighth Amendment ...... 45

B. Florida’s warrant selection process lacks any meaningful safeguards and is violative of due process under the Fifth and Fourteenth Amendments ...... 49

C. The lower court’s rulings failed to squarely address Mr. Mann’s claims and/or are incorrect as a matter of law ...... 56

iv

ARGUMENT III ...... 59

MR. MANN HAS BEEN DENIED ACCESS TO PUBLIC RECORDS TO WHICH HE IS ENTITLED, IN VIOLATION OF FLA. R. CRIM. P. 3.852, FLA. STAT. § 119, AND BRADY V. MARYLAND...... 59

ARGUMENT IV ...... 64

INITIAL REVIEW POST CONVICTION COUNSEL FAILED TO PROPERLY RAISE AND OBTAIN A HEARING ON A CLAIM OF INEFFECTIVENESS OF TRIAL COUNSEL AT MANN=S RE-SENTENCING TRIAL FOR FAILING TO PRESENT MITIGATION. MARTINEZ V. RYAN MARKS A TECTONIC SHIFT IN THE LANDSCAPE WHERE THE SUPREME COURT OF THE UNITED STATES ESTABLISHED A RULE IN EQUITY TO ALLOW FOR THE PRESENTATION OF CLAIMS THAT WERE PROCEDURALLY BARRED DUE TO INITIAL REVIEW COUNSEL=S DEFICIENT PERFORMANCE. THIS COURT SHOULD EXTEND THE EQUITABLE PRINCIPLES OF MARTINEZ TO STATE COURT PROCEEDINGS...... 64

CONCLUSION AND RELIEF SOUGHT ...... 68

CERTIFICATE OF SERVICE ...... 68

CERTIFICATE OF COMPLIANCE ...... 70

v

TABLE OF AUTHORITIES

Cases

Allen v. U.S. , 164 U.S. 492, 17 S.Ct. 154 (1896) ...... 36

Allen v. United States, 164 U.S. 492, 108 S.Ct. 546 . . . (1988) ...... 35

Andres v. United States, 333 U.S. 740, 68 S.Ct. 880 (1948) ...... 36

Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029 (1978) ...... 34

Batson v. Kentucky, 476 U.S. 79 (1986) ...... 28

Baze v. Rees, 553 U.S. 35 (2008) ...... 58

Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382 (1980)...... 23

Brady v. Maryland, 373 U.S. 83 (1963) ...... 20, 59

Cleveland Board. Of Education v. Loudermill, 470 U.S. 532 (1985) ...... 53

Cooper v. Rimmer, 379 F.3d 1029 (9th Cir.2004) ...... 23

Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13 (1923) ...... 40

Duckett v. State, 918 So.2d 224 (Fla. 2005) ...... 60

Espinosa v. Florida, 505 U.S. 1079 (1992) ...... 48

Ferguson v. State, 101 So.3d 362 (Fla. 2012) ...... 57

Ford v. Wainwright, 477 U.S. 399 (1986) ...... 53

Furman v. Georgia, 408 U.S. 238 (1972) ...... 45, 46, 49, 58

Fuster v. State, 664 So.2d 18 (Fla. 3d DCA 1995) ...... 39

vi

Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197 (1977) ...... 24

Gore v. State, 91 So.3d 769 (Fla. 2012) ...... 21, 57

Graham v. Florida, 130 S. Ct. 2011 (2010) ...... 41, 58

Gregg v. Georgia, 428 U.S. 153 (1976) ...... 23, 47

High v. Head, 209 F.3d. 1257 (11th Cir. 2000) ...... 60

Howell v. State, 2013 Fla. LEXIS 297 (Fla. Feb. 25, 2013) ...... 41, 43

In re Amendment to Florida Rules of Criminal Procedure-Capital Postconviction

Pub. Records Prod., 683 So.2d 475 (Fla. 1996) ...... 62

Johnson v. Louisiana/Apodaca v. Oregon, 406 U.S. 356 (1972) ...... 36

Johnson v. State, 44 So. 3d 51 (Fla. 2010) ...... 53

Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999) ...... 35

Kopsho v. State, 84 So.3d 204, 220 (Fla. 2012) ...... 43

Larry Eugene Mann v. Michael Moore, Respondent, No. 8:02-cv-1439-T-23MAP

(M.D.Fla. Nov. 10, 2010) ...... 3

Larry Eugene Mann v. Secretary, Florida Department of Corrections, Attorney

General, State of Florida, Respondents, No. 11-10855-P (11th Cir., Aug. 15,

2011) ...... 4

Larry Eugene Mann v. Secretary, Florida Department of Corrections, Attorney

General, State of Florida, Respondents, No. 11-10855-P (11th Cir., Feb. 15,

2012) ...... 4

vii

Lowenfeld v. Phelps, 484 U.S. 231, 108 S.Ct. 546 (1988) ...... 35

Mann v. Florida, 469 U.S. 1181 (1985) ...... 2

Mann v. Florida, 506 U.S. 1085 (1993) ...... 3

Mann v. Moore, 794 So.2d 595 (Fla.2001) ...... 3

Mann v. State, 420 So.2d 578 (Fla. 1982) ...... 1

Mann v. State, 453 So.2d 784 (Fla. 1984) ...... 2

Mann v. State, 770 So. 2d 1158 (Fla. 2000) ...... 3

Marek v. State, 8 So.3d 1123 (Fla. 2009) ...... 57

Martinez v. Ryan, 132 S.Ct. 1309(2012) ...... 5

Miller v. Alabama, 132 S.Ct. 2455 (2012) ...... 58

Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) ...... 53

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244 (1998) ...58

Parker v. State. 904 So. 2d 370 (Fla. 2005) ...... 43

Penry v. Lynaugh, 492 U.S. 302 (1989) ...... 24

Porter v. State, 653 So.2d 375 (Fla. 1995), cert. denied, 115 S.Ct. 1616 (1995) ...60

Proffitt v. Florida, 428 U.S. 242 (1976) ...... 47

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002) ...... 43

Robinson v. California, 370 U.S. 660 (1962) ...... 46

Roper v. Simmons, 543 U.S. 551 (2005) ...... 23, 58

Sims v. State, 753 So.2d 66 (Fla. 2000) ...... 61, 64

viii

Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669 (1986) ...... 65

Snyder v Louisiana, 552 U.S.472 (2008) ...... 28

Snyder v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214 (1980) ...... 36

State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988) ...... 33

State v. Steele, 921 So. 2d 538 (Fla. 2005) ...... 31

Stephens v.State, 748 So. 2d 1028, 1032 (Fla. 2000) ...... 21

Sumner v. Shulman, 483 U.S. 66, 107 S.Ct. 2716 (1987)...... 33

Swain v. Alabama, 380 U.S. 202 (1965) ...... 28

Thompson v. Calderon, 151 F.3d 918 (9th Cir. 1998) ...... 60

Trop v. Dulles, 356 U.S. 86 (1958) ...... 23

Valle v. State, 70 So.3d 530 (Fla. 2011) ...... 57

Ventura v. State, 673 So.2d 479 (Fla. 1996) ...... 60

Walton v. State, 3 So.3d 1000 (Fla. 2009) ...... 21

Woodson v. North Carolina, 428 U.S. 280 (1976) ...... 58

Statutes

§ 546.710 R.S. Mo ...... 51

§922.052, Fla. Stat...... 56

42 Pa.C.S. § 9711(i) ...... 50

42 U.S.C. §1983 ...... 44

61 Pa.C.S.. § 4302 ...... 50

ix

A.C.A. §16-90-507 ...... 50

Ariz. Rev. Stat. §13-759 ...... 51

Fl. Stat. § 922.052 ...... 49

Fla. Stat. §119 ...... 20, 59

Fla. Stat. §14.28 ...... 13, 15

Fla. Stat. 921.141 ...... 31

NH Rev. Stat. § 630:5 ...... 50

Other Authorities

American Bar Association Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases, 10.11 (Commentary, p. 113) (2003) ...... 65

American Bar Association Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases, 11.4.1 (B) (1989); 11.4.1. (D) (2)(B) ...... 66

Florida Constitutional Amendment Article I ...... 8

Sourcebook of Criminal Justice Statistics; Monica K. Miller & Michelle N.

Kazmar, APsychology Research and Public Opinion Do Not Support Proposed

Changes to the Jury System,@ 30 Hamline L. Rev. 285 at 287 (Spring 2007) .....28

Wanda D. Foglia & William J. Bowers, AShared Sentencing Responsibility; How

Hybrid Statutes Exacerbate the Shortcomings of Capital Jury Decision-Making,@

42 Crim. Law. Bull. 1 (2006) ...... 29

x

Rules

Ariz. R. Crim. P. 31.17(c)(3) ...... 51

Florida Rule of Criminal Procedure 3.851 ...... …16, 41, 50

Florida Rule of Criminal Procedure 3.850 ...... 2

Florida Rule of Criminal Procedure 3.852 ...... passim

xi

STATEMENT OF THE CASE

Procedural History

On November 18, 1980, Mr. Mann was indicted by a grand jury for one count of premeditated first degree murder and one count of kidnapping. He pled not guilty to both counts.

Mr. Mann was tried before the Honorable Philip A. Frederico. On March

20, 1981, the jury returned a verdict finding Mr. Mann guilty of first-degree murder as charged in the indictment and kidnapping. After a penalty phase proceeding the jury recommended to the Court, “[t]he majority of the jury advise and recommend to the court that it impose the death penalty” (Tr.360).1 The court sentenced Mr. Mann to death on March 26, 1981. The trial court found the death sentence was supported by the aggravating elements of prior conviction of a violent felony; felony murder; heinous, atrocious and cruel; and that the killing was cold, calculated and premeditated. Mann v. State, 420 So.2d 578, 580 n.2 (Fla.

1982). On appeal, this Court found there was insufficient evidence to find the cold, calculated, or premeditated element and insufficient evidence to support the prior violent felony element. Id. at 581-2. This Court vacated the death sentence, and remanded for a new sentencing proceeding before the trial court. Id.

1 While the jury verdict form did not reveal the actual vote, according to a post-trial interview with the victim’s mother, the jury’s vote in the first trial was 7-5. David Von Drehle, Among the Lowest of the Dead, First Fawcett Crest Edition, 1996, p. 337. 1

At the re-sentencing proceeding the state introduced new evidence to support the prior violent felony element. The court found three aggravating elements and again sentenced Mr. Mann to death. Mann v. State, 453 So.2d 784

(Fla. 1984). This Court affirmed the sentence. Id. The United States Supreme

Court denied certiorari. Mann v. Florida, 469 U.S. 1181 (1985).

A clemency hearing was conducted, however, at least one member of the clemency board walked out prior to the conclusion of the clemency proceedings.

WARRANT PCR, Vol. III, p. 550. On January 7, 1986, the Governor denied clemency and signed a death warrant. On January 30, 1986, Mr. Mann filed a

Motion to Vacate Judgment and Sentence pursuant to Fla.R. Crim.P. 3.850 and an application for stay of execution. The circuit court denied the Motion and the stay on January 30, 1986. Mr. Mann filed an original Petition for Writ of Habeas

Corpus and an appeal in this Court on February 1, 1986. This Court affirmed the trial court’s summary denial of post conviction relief and denied Mr. Mann’s State

Habeas on February 1, 1986. Mann v. State, 482 So.2d 1360 (Fla. 1986).

Thereafter, Mr. Mann filed a Petition for Writ of Habeas Corpus in the

United States District Court for the Middle District of Florida. On February 3,

1986, Federal District Court Judge Kovachevich granted Mr. Mann a stay of execution but denied the petition. The Eleventh Circuit Court of Appeals reversed, granting Mr. Mann a re-sentencing before a newly empaneled jury. Mann v.

2

Dugger, 844 F.2d 1446 (11th Cir. 1988)(en banc), cert. denied, 109 S. Ct. 1353

(1989).

The new penalty phase jury recommended the death penalty by a vote of nine to three. The court again sentenced Mr. Mann to death, and this Court affirmed the death sentence. Mann v. State, 603 So.2d 1141 (Fla. 1992). The

United States Supreme Court denied certiorari. Mann v. Florida, 506 U.S. 1085

(1993).

Mr. Mann filed a 3.850 motion for post conviction relief on July 11, 1995.

The court granted leave to amend. After several amendments, the court granted a limited evidentiary hearing on a subclaim regarding ineffective assistance of counsel. The court denied relief on January 12, 1999. This Court affirmed the denial of relief. Mann v. State, 770 So. 2d 1158 (Fla. 2000). Thereafter, Mr. Mann filed an original writ of habeas corpus on December 20, 2000. This Court denied habeas relief. Mann v. Moore, 794 So.2d 595 (Fla.2001).

Mr. Mann subsequently filed a timely Petition for Writ of Habeas Corpus with the Federal District Court. The United States District Court for the Middle

District of Florida denied Mr. Mann’s 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his death sentence in an unpublished Order, Larry Eugene

Mann v. Michael Moore, Respondent, No. 8:02-cv-1439-T-23MAP (M.D.Fla. Nov.

10, 2010). The Eleventh Circuit denied a Certificate of Appealability (COA). Larry

3

Eugene Mann v. Secretary, Florida Department of Corrections, Attorney General,

State of Florida, Respondents, No. 11-10855-P (11th Cir., Aug. 15, 2011)(Order by single judge denying COA); Larry Eugene Mann v. Secretary, Florida

Department of Corrections, Attorney General, State of Florida, Respondents, No.

11-10855-P (11th Cir., Nov. 29, 2011)(2-1 Order by three-judge panel denying motion for reconsideration of denial of COA); Larry Eugene Mann v. Secretary,

Florida Department of Corrections, Attorney General, State of Florida,

Respondents, No. 11-10855-P (11th Cir., Feb. 15, 2012) (2-1 Order denying motion for briefing schedule). The United States Supreme Court denied Mr.

Mann’s Petition for a Writ of Certiorari on October 1, 2012.

On February 8, 2013, counsel for Mr. Mann contacted the Attorney

General’s Office via email to obtain their position on Mr. Mann and other similarly situated Plaintiffs’ motion to join a pending Section 1983 in the Jacksonville

Division of the Federal District Court and file an amended complaint in that action.

WARRANT PCR Vol. V, p. 811-12. The Attorney General’s Office did not respond to the email.

On February 18, 2013, Mr. Mann filed a motion to join the Section 1983 in the Jacksonville Division. (3:10-cv-1130-J-34MCR, Doc. 21). On February 19,

2013, Plaintiffs served Defendants with “Plaintiffs’ First Set of Interrogatories and

Requests for Production of Documents Directed to Defendants.”

4

On March 1, 2013, Governor Rick Scott signed a death warrant on Mr.

Mann, setting the execution for April 10, 2013 at 6:00 p.m.2 This Court issued a

Scheduling Order on March 5, 2013, directing all proceedings to be concluded and an order entered from the state circuit court by March 20, 2013 at 4:00 p.m.

The state circuit court conducted a hearing on March 4, 2013, which was continued to March 5, 2013. On Tuesday, March 5, 2013, the state circuit court entered a scheduling order, requiring Mr. Mann to file any public records requests by 5:00 p.m. on the same day. The State was required to file objections by 5:00 p.m. on March 6th, and a hearing on the objections was scheduled for March 7th at

10:00 a.m. The court required Mr. Mann to file his post conviction motion by

Friday, March 8th at 5:00 p.m. The court directed the State to respond before 9:00

2 On March 7, 2013, the Honorable Marcia Morales Howard, issued an Order denying Mr. Mann’s request to join the pending Section 1983. (3:10-cv-1130-J- 34MCR, Doc. 31). In that Order, the Court directed Mr. Mann to a Standing Order which indicated that Tampa was the appropriate division for Mr. Mann’s case. Therefore, Mr. Mann filed his Complaint in the Tampa Division on March 8, 2013. (8:13-cv-00620-T-23-TGW, Doc. 1). That case is currently pending. On March 18, 2013, Mr. Mann filed an Emergency Motion for Relief From Judgment Under Rule 60(b)(6) in light of Martinez v. Ryan, 132 S.Ct. 1309(2012), and Motion for Expedited Preliminary Ruling. (8:02-cv-1439-T-23MAP, Doc. 71). That Motion is still pending. Mr. Mann also filed a Motion in Case No. 8:13-cv-620-T-23- TGW seeking leave of court to amend his Section 1983 complaint to include a claim alleging a violation of Due Process in his 2013 clemency proceedings. That Motion is still pending.

5 a.m. on Monday, March 11th. The court indicated it would conduct a Case

Management Conference on March 11th at 1:30 p.m. and an evidentiary hearing if one was necessary on March 15th at 9:00 a.m. WARRANT PCR Vol. I, p. 182-183.

On March 8, 2013, the circuit court denied all of Mr. Mann’s public records requests. WARRANT PCR Vol. III, p. 396-405. On March 12th, the circuit court denied Mr. Mann’s request for an evidentiary hearing on all three of his claims.

WARRANT PCR Vol. VI, p. 1125. On March 18th, the circuit court denied Mr.

Mann’s post conviction motion. WARRANT PCR Vol. VII, p. 1233-52. Mr.

Mann filed a Motion for Rehearing on March 18th, the State filed a Response on

March 19th, and the circuit court denied the Motion for Rehearing on March 19th.

WARRANT PCR Vol. VII, p.1253-63; 1302-06; 1307-09. Mr. Mann filed a

Notice of Appeal on March 19th. WARRANT PCR Vol. VII, p. 1310-11. This

Appeal follows.

STATEMENT OF FACTS

Mr. Mann submitted 23 Exhibits to the circuit court in support of his successive post conviction motion. WARRANT PCR Vol. III, p. 548-49 (Defense

Exhibit List showing Exhibits 1-21); Vol. VII, p. 1219-1232 (Exhibits 22-23). As discussed below, this Court is required to accept Mr. Mann’s factual assertions as true to the extent they are not conclusively refuted by the record.

Juror Unanimity Claim

6

In support of his claim that his sentence of death and impending execution are unconstitutional under the Eighth Amendment’s evolving standards of decency,

Mr. Mann submitted the affidavit of Dr. Neil Vidmar, the non-unanimous jury verdict from his resentencing, and newspaper articles and affidavits demonstrating the intimidation tactics and outside pressure on Mr. Mann’s jury to sentence him to death. WARRANT PCR Vol. IV, p. 622-629, 637; Vol. V, p. 814-846, 973-979.

Had the post conviction court granted a hearing, Mr. Mann would have presented the testimony of Dr. Vidmar to explain the knowledge gained by social scientists on group decision making as it relates to the capital jury context and how a lack of juror unanimity leads to a juror’s reduced sense of obligation and moral responsibility and allows majority jurors to ignore the views of minority jurors, especially so if the minority jurors are of a different gender or racial group, such as

African American or Hispanic. Mr. Mann also provided a list of the names of the

22 people who were sentenced to death in Florida in 2012 and a request for the post conviction court to take judicial notice of foreign laws. WARRANT PCR,

Vol. VI, p. 1116-19; V.7, p. 1237, n. 4. The court took judicial notice of this information at the March 11, 2013 hearing. Id.

Mr. Mann argued that the number of death sentences in Florida in 2012 was the most significant newly discovered fact relevant to this claim because Florida had the highest number of new death sentences of any state in the nation and its

7 death sentences comprised 35% of all new death sentences nationwide. Further, every other state in the nation had seen a decline in the number of death sentences imposed in 2012.

Arbitrary Warrant

In support of Mr. Mann’s claim that his death warrant was arbitrarily signed as a result of continuous public pressure to have Mr. Mann executed, Mr. Mann submitted to the circuit court newspaper articles, letters, transcripts of television interviews, and legislative history of the victims’ rights constitutional amendment.

These documents all demonstrate the pervasive nature of the pressure and influence the victim’s family and community have placed on the courts, legislature, and Governors, both past and present, to see that Mr. Mann is executed.

The victim’s mother was a driving force behind the passage of Florida

Constitutional Amendment Article I, §16(b). WARRANT PCR Vol. V, p. 819.

Article I, §16(b) was initiated as Senate Joint Resolution 135. WARRANT PCR

Vol. VII, p. 1219. The bill was sponsored in the Senate by Senators Dexter

Lehtinen and Ileana Ros-Lehtinen and in the House by Representatives Charles

Canady, Spud Clements, Joseph Mackey, and Tom Gustafson. Id. at 1219,1222.

The victim’s mother also appeared in a television commercial in 1994 supporting Jeb Bush as a candidate for Governor over Lawton Chiles because

Chiles had failed to execute Larry Mann during his term in office. WARRANT

8

PCR Vol. V, p. 835-836. She also appeared on the Geraldo Show. Id. at 783-791.

The victim’s mother actively campaigned against sitting judges, including the

Honorable Rosemary Barkett and the Honorable Leander Shaw, for being “soft on crime”. Id. at 831, 834; David Von Drehle, Among the Lowest of the Dead, First

Fawcett Crest Edition, 1996, p. 339-340.

Additionally, numerous members of the family as well as members of the community wrote over 120 letters to Judge Case, urging him to sentence Mr. Mann to death. WARRANT PCR Vol. IV and V, p. 638-782. Many of the letters were form letters that were signed by different individuals or companies. Id. The letters from David and Wendy Nelson and the leaflet distributed at the courthouse are

“Bates” stamped and came from the State Attorney’s File. Id. at 638-643. A sampling of the letters reveals the amount of media coverage Mr. Mann’s case generated. One letter-writer offered, “I’ll even shut my electricty (sic) off so you can have all the eletricty (sic) you need to put him away…put him in the Eletric

(sic) Chair.” WARRANT PCR Vol. IV, p. 663. Dorothy Ruggles, the Pinellas

County Supervisor of Elections, wrote a letter on letterhead “to express [her] vote as a thirteenth jury member and recommend that the Court, again, sentence Mr.

Mann to death. Id. at 704.

Mr. Mann also presented newspaper articles demonstrating the victim’s family’s heavy involvement in the death penalty both before and after Mr. Mann’s

9 crime. WARRANT PCR Vol. V, p. 814-846. Mr. Mann also presented a letter that the victim’s father wrote to the federal district court in 2007 asking the court to address Mr. Mann’s case. Id. at 813. In September of 2010, the Attorney General filed a “Motion for Ruling on Petition” asking the district court to rule. (8:02-cv-

01439-T-23MAP, Doc. 47). The District Court issued its ruling two months later.

(8:02-cv-01439-T-23MAP, Doc. 58). At least one family member has called the

Governor’s Office about Mr. Mann’s case. WARRANT PCR Vol. V, p. 845.

Public Records

On March 5, 2013, Mr. Mann filed public records requests pursuant to

Florida Rule of Criminal Procedure 3.851(h) and served them on six agencies.

WARRANT PCR Vol. II, p. 184-203. With the exception of the Department of

Corrections, who provided some responsive records but claimed exemption over others, and the State Attorney’s Office, who provided only correspondence between the State Attorney and CCRC, every other agency refused to provide Mr.

Mann any public records.

Florida Department of Corrections

On March 5, 2013, Mr. Mann requested from the Department of Corrections

(DOC) all disciplinary reports for Mr. Mann since 1981, all grievances filed by Mr.

Mann from 2010 to present, and “all medical records, reports, handwritten notes or any other communications in written form regarding the medical treatment related

10 to the condition, care, and confinement of [Mr. Mann] from 1981 to present, including any records concerning venous access.” WARRANT PCR Vol. II, p.

196. Mr. Mann provided DOC with a signed and notarized release, authorizing his medical records to be disclosed to his counsel. Id. at 199-200.

On March 6, 2013, DOC filed its response to Mr. Mann’s request. DOC indicated that it had “no record of Inmate Mann receiving any disciplinary reports since 1981.” Id. at 274. DOC also stated that “[t]he Department will provide all grievances filed by [Mr. Mann] from 2010 to the present and the entire medical file of [Mr.] Mann from 1981 to the present. These records are being sent by Federal

Express directly to defense counsel.” Id. at 275 (emphasis added).

The DOC records were delivered to CCRC the morning of March 7th. The

CD that was delivered was not accompanied by a transmittal sheet to the

Repository identifying any exempt records. The transmittal sheet was sent later that day, after the records hearing had concluded. Counsel for Mr. Mann was not in the office when they arrived because they were en route to the courthouse for the public records hearing scheduled for 10:00 a.m. WARRANT PCR Vol. I, p. 182.

At the records hearing, based on the representations contained in DOC’s written response that they provided “the entire medical file”, Mr. Mann told the court that

“as far as DOC goes, they have responded to our request and - - until I get a chance to look at the records, but it appears that they have complied, and I don’t think we

11 need to address anything more with them.” WARRANT PCR Vol. III, p. 414.

The court asked counsel for DOC, who was appearing by telephone, if there was anything counsel would like to add and counsel for DOC responded that he did not and reiterated “we’ve provided the entire medical file. It’s over 2,000 pages from

1981 to the present.” Id. The records hearing continued for over an hour longer addressing other objections, including the Governor’s refusal to turn over any records relating to Mr. Mann’s clemency proceeding. At the end of the hearing, as the court was about to conclude, counsel for DOC stated:

Mr. Arthmann: Your honor?

The Court: Yes, sir.

Mr. Arthmann: David Arthmann from the Department of Corrections. I’m sorry. I think I have an oversight here on my end. I just wanted to make the Court and capital counsel aware there were actually two of our records in the medical file that were redacted pursuant to the 1428 executive clemency statute…

The Court: Two records redacted from the medical file?

Mr. Arthmann: Yes, your Honor. They were created in response to executive clemency investigation.

Id. at 462. The records were prepared “[f]or the Board of Executive Clemency.”

Id.

This was the first that Mr. Mann learned that his own medical records were disclosed to the Governor and the Executive Clemency Board without his consent

12 and that he was forbidden to view them. At Mr. Mann’s request, the court reviewed the records in camera and determined that “the documents were generated in the clemency process and, thus, are confidential under Fla. Stat.

§14.28. The documents do not need to be provided to the Defendant.”

WARRANT PCR, Vol. III, p. 402. The records remain sealed before this Court and appear at Vol. III, p. 501-503.

Pinellas County State Attorney’s Office

On March 5, 2013, Mr. Mann requested the State Attorney’s Office to provide public records on: 1) victim advocate/witness coordinator information from Mr. Mann’s case, 2) documents from outside individuals or groups regarding

Mr. Mann from 1990-present and any responses thereto, 3) documents showing communication between the Office of the State Attorney, the Attorney General’s

Office, and the Office of the Governor regarding Mr. Mann from January 1, 2012 to the present, and 4) documents regarding the placement of a constitutional amendment on the Florida ballot in 1988. WARRANT PCR Vol. II, p. 201-02.

The State Attorney’s office objected to the request, arguing in part that any reliance by Mr. Mann on Brady v. Maryland was improper because “Brady does not apply to post conviction proceedings.” Id. at 276. Despite a blanket objection to Mr. Mann’s requests, the State Attorney did “respond” to each of the four requests.

13

The State Attorney’s Office stated that it provided “its entire file” to Mr.

Mann in 1994 and 1995, with the exception of files that were found by the circuit court to be exempt at that time. Id. at 295, 298. As for the first request regarding the victim advocates information, the State Attorney indicated those records were previously provided in 1995.

As to the second request, correspondence about Mr. Mann’s case from outside groups, the State Attorney provided letters between the State and CCRC, but no other correspondence. Id. at 300-311.

As for the third request, the State Attorney provided approximately 100 pages of emails and letters to Mr. Mann in open court. WARRANT PCR Vol. III, p. 452. The emails provided were all dated after the signing of Mr. Mann’s death warrant and involve scheduling matters. The letters provided were simply correspondence between CCRC and the State Attorney. Id. at 476-77. The State

Attorney also provided the court with 16 emails they claimed as work product. Id.

The court conducted an in camera review and found the “documents do qualify as work product, and need not be produced to the Defendant.” Id. at 404. These records remained sealed before this Court and appear at Vol. III, p. 483-499.

Office of the Governor

On March 5, 2013, Mr. Mann requested public records from the Office of the Governor for: 1) documents showing communication between the Governor’s

14

Office and the Attorney General’s Office regarding Mr. Mann’s eligibility for or the selection of Mr. Mann for a death warrant from October, 2012 to the present, 2) documents from outside parties in regards to Mr. Mann’s death sentence, delay in signing a warrant, or the signing of his warrant, 3) the complete file of the updated clemency investigation described in the warrant, and 4) documents showing communication between the Governor’s Office and the Florida Parole Commission regarding Mr. Mann from January 2010 to present. WARRANT PCR Vol. II, p.

184-85.

On March 6, 2013, the Governor’s Office filed an objection to all of Mr.

Mann’s requests. Id. at 245-248. The Governor argued that Mr. Mann has not shown the records would support a valid claim for post conviction relief and additionally, any records relating to clemency are confidential under Fl. Stat.

§14.28. Id. at 245, 247. The circuit court sustained their objections and found that the requests were untimely and did not relate to a colorable post conviction claim.

WARRANT PCR Vol. III, p. 403. The court also found that the clemency records were confidential under Fl. Stat. §14.28 and King v. State, 840 So.2d 1047 (Fla.

2003).

Office of the Attorney General

On March 5, 2013, Mr. Mann requested public records from the Office of the Attorney General for: 1) documents showing communication between the

15

Governor’s Office and the Attorney General’s Office since January of 2010 regarding the selection of Mr. Mann for the signing of a death warrant, and 2) documents showing communications from outside individuals or groups regarding

Mr. Mann since January 2010 and any responses thereto. WARRANT PCR Vol.

II, p. 193.

On March 6, 2013, the Attorney General’s Office filed an objection to all of

Mr. Mann’s requests. Id. at 250-256. The Attorney General argued that Mr.

Mann’s request was improper under Rule 3.851(h) because Mr. Mann had never previously requested records from the Attorney General’s Office. Id. at 251. The

Attorney General also objected on the basis that the requests were not related to a colorable claim of relief. Id. At the records hearing, the Attorney General argued that Mr. Mann’s requests should have been filed under 3.851(i). WARRANT PCR

Vol. III, p. 432. After the hearing, Mr. Mann re-filed his request complying with

3.851(i). WARRANT PCR Vol. II, p. 370-374. The Attorney General’s Office filed another objection arguing that Mr. Mann’s counsel had not been diligent in seeking the records and that the records did not relate to a colorable claim for relief. WARRANT PCR Vol. III, p. 375-381. The court sustained the Attorney

General’s Objections finding that the requests were not relevant or “reasonably calculated to lead to the discovery of admissible evidence.” Id. at 398. The court

16 also found that Mr. Mann “did not make a timely and diligent search of the records.” Id.

Florida Senate District 20 and Florida State House District 65

Mr. Mann initially sought public records from Senate District 20 and State

House District 65 regarding the passage of the victim’s rights constitutional amendment. WARRANT PCR Vol. II, p. 187-192. The victim’s family had played a prominent role in its passage. The Attorney General argued on behalf of these agencies that a request under 3.851(h) was improper because Mr. Mann had not previously requested records from these agencies. Id. at 264. The Attorney

General also argued that these agencies were specifically exempted under Chapter

119 and 3.852. Id. at 263-264. At the records hearing, the court gave Mr. Mann an opportunity to re-file his request under 3.851(i) by 2:00 p.m. that same day. After reviewing the law cited in the responses regarding the agencies’ exemption under

3.852 and Chapter 119, Mr. Mann did not seek to re-file his request under 3.852(i).

Martinez Claim

In support of his claim that initial review post conviction counsel was ineffective because they failed to properly raise and obtain a hearing on a claim of ineffectiveness of trial counsel at Mann’s re-sentencing trial for failing to present mitigation, Mr. Mann presented the Affidavit of Dr. Morton, affidavits from prison guards showing Mr. Mann’s kindness and religious devotion in prison, the affidavit

17 of James Aiken showing that Mr. Mann has an impeccable prison record and would not pose any danger if he were given a life sentence, and color photographs of the paintings Mr. Mann has done while in prison for friends and family members. WARRANT PCR Vol. III, p. 550-571(Affidavits of Robert McMurrain,

Sister Loretta Pastva, James Aiken, Dr. Alexander Morton); Vol. IV, p.572-621

(continuation of Dr. Morton Affidavit); Vol. V, 792-810 (color photographs of paintings); Vol. VI, p. 1120-1124 (Report of James Aiken and Affidavit of prison nurse Tammy Davies); Vol. VII, p. 1218 (Affidavit of prison guard Eldon Davies).

SUMMARY OF ARGUMENT

The lower court erred in failing to grant relief for the following reasons.

First, the lower court erred in summarily denying Mr. Mann’s claims without an evidentiary hearing. Mr. Mann’s claims were not purely legal or conclusively refuted by the record. He was denied the opportunity to present evidence in support of his claims at a full and fair evidentiary hearing.

Second, the lower court erred in denying Mr. Mann’s claim that his sentence of death and impending execution are a violation of the Eighth Amendment’s evolving standards of decency that mark the progress of a maturing society.

Florida’s outlier status in not requiring unanimous verdicts renders Mr. Mann’s death sentence, which was imposed after a 9 to 3 vote, unconstitutional. In no other state in the country would Mr. Mann have been sentenced to death. Florida’s

18 increase in death sentences in 2012 compared to the rest of the nation is newly discovered evidence of the constitutional deficiencies of Florida’s non-unanimity requirement.

Third, the lower court erred in denying Mr. Mann’s claim that the arbitrary warrant selection process is violative of the Fifth, Eighth, and Fourteenth

Amendments. This Court has yet to address a case with the factual situation presented here, where an individual’s warrant was signed as a result of continuous public pressure that began with packing the courtroom with victim advocates to pressure the jury and the sentencing judge into sentencing Mr. Mann to death in

1990, and continuing throughout Mr. Mann’s state and federal proceedings. The public pressure in Mr. Mann’s case extended into state and local politics as well and led to the passage of an amendment to the Florida Constitution. Florida is an outlier with respect to how an individual is selected for execution. In the vast majority of states, an execution date is set as the result of an orderly process of justice, usually by a court, after advance notice is given to the condemned and his counsel. In Florida, the process is shrouded in secrecy, compounded by the State’s repeated refusal to turn over public records relating to the selection process.

Fourth, the lower court erred in denying Mr. Mann access to public records.

As an average citizen, Mr. Mann would have had access to nearly all of the records he sought. Yet because he is an indigent prisoner on death row, he was denied

19 complete access to public records relevant to the development of his post conviction claims. The denial of access to public records was a violation of Fla. R.

Crim. P. 3.852, Fla. Stat. §119, state and federal Due Process and Brady v.

Maryland, 373 U.S. 83 (1963).

Finally, the lower court erred in denying Mr. Mann’s Martinez claim.

Initial-review post conviction counsel’s investigation and preparation were deficient. Counsel’s presentation at the Huff hearing demonstrated that counsel had not read the record on appeal, had not investigated the case and counsel was wholly unprepared to be an engaged, informed advocate for her client at his one true chance to present evidence regarding trial counsel’s ineffective assistance.

Had initial-review post conviction counsel investigated Mr. Mann’s background and prison record, counsel would have been able to present testimony that Mr. Mann has never received any disciplinary reports/infractions the entire period of his incarceration. Further, Mann is a truly devout student of the Christian

Bible and has generated deep friendships with prison guards and others around the world. Further, expert testimony would have established that Mann could be safely incarcerated for the remainder of his life without being a threat to prison staff or other inmates. And, Dr. Alex Morton could have testified to the effects of alcohol and alcohol induced “black-out” that Mann experienced during the commission of the crime. This testimony was not presented to the jury.

20

STANDARD OF REVIEW

The standard of review is de novo. Stephens v. State, 748 So.2d 1028, 1032

(Fla. 2000). Florida Rule of Criminal Procedure 3.850(h)(6) provides “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion may be denied without an evidentiary hearing.” In reviewing a trial court's summary denial of post conviction relief without an evidentiary hearing, this Court must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record. Walton v. State, 3 So.3d

1000 (Fla. 2009); Gore v. State, 91 So.3d 769 (Fla. 2012).

ARGUMENT I

FLORIDA’S DEATH PENALTY STATUTE, WHICH ALLOWS A NON-UNANIMOUS VERDICT, IS UNCONSTITUTIONAL UNDER THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND VIOLATES EVOLVING STANDARDS OF DECENCY WHICH MARK THE PROGRESS OF A MATURING SOCIETY. THE POST CONVICTION COURT ERRED IN SUMMARILY DENYING THIS CLAIM.

Mr. Mann=s first claim is based on the Eighth Amendment=s principle of evolving standards of decency. 3 Mann argued the claim could not have been raised previously because the consensus concerning Florida=s outlier death penalty statute was not as marked as it is in 2013. Particularly since the events of the last five

3 This is essentially the same claim that is raised in Mr. Mann’s State Habeas Petition, although there are some variations. 21 years, most notably the 2012 rise in the number of death sentences in Florida,

Florida has become an outlier in its death penalty sentencing practice.

Mann identified the evidence upon which he relies as follows: A) The result of recent research on the science of group decision making as it relates to jury verdicts, B) Florida=s status as an outlier in allowing a non-unanimous jury verdict,

C) The fact that in no other State in the entire country would Mr. Mann have been sentenced to death on a 9 to 3 jury verdict other than Florida (even Alabama, the other outlier, requires a 10-2 verdict) and, D) The stunning trend in Florida of an extreme rise in the number of death sentences in Florida in 2012 compared with the marked decline of death sentences in every other state in the country.

Mann argued that it is this remarkable rise in death sentences in the State in

2012, the continuing outlier status of Florida as the only State which allows a jury to recommend death by a simple majority vote, scientific studies on jury decision- making demonstrating the diminished reliability of non-unanimous verdicts, and the fact that the Florida Statute does not even require a jury to indicate whether it found any aggravator by a majority, which establishes that in 2013, the Florida

Death Penalty Statute no longer comports with the evolving standards of decency that mark the progress of a maturing society.

The Eighth Amendment to the United States Constitution prohibits the

Aunnecessary and wanton infliction of pain,@ Gregg v. Georgia, 428 U.S. 153, 173

22

(1976) (plurality opinion), and procedures that create an Aunnecessary 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 Athe evolving standards of decency that mark the progress of a maturing society.@ Roper v.

Simmons, 543 U.S. 551, 561 (2005)(quoting Trop v. Dulles, 356 U.S. 86, 100-01

(1958) (plurality opinion). AThe basic concept underlying the Eighth Amendment is nothing less than the dignity of man.@ Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct.

590 (1958). In assessing the evolving standards of decency, the Court considered laws around the entire world. Id. at 102-03. The Court further stated, that, AThe provisions of the Constitution are not time-worn adages or hollow shibboleths.

They are vital, living principles that authorize and limit governmental powers in our Nation. A Id. at 103.

The Eighth Amendment to the Federal Constitution requires additional procedural protections in capital cases. Beck v. Alabama, 447 U.S. 625, 637-38,

100 S.Ct. 2382 (1980). ADeath is a different kind of punishment from any other which may be imposed in this country. From the point of view of the defendant, it is different in both its severity and its finality . . . .From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other state action. It is of vital importance to the

23 defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.@ Gardner v.

Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197 (1977).

Florida=s jury system in capital cases has failed to keep pace with the evolving standards of decency that mark the progress of a maturing society as demonstrated by the other State and federal death penalty statutes nationwide.

Florida=s system is not in accord with the evolving standards of decency because juries are not required to issue a unanimous death sentence and the State still adheres to a widely criticized practice of allowing a judge to override a jury=s life verdict. Florida=s capital punishment statute regarding juror unanimity is an outlier that has failed to keep pace with the rest of the nation.

Pursuant to Graham v. Florida, the Eighth Amendment=s Cruel and Unusual

Punishment Clause analysis alleging failure to comport with the evolving standards of decency requires that a court make two determinations on a Asentencing practice at issue.@ 560 U.S. B , 130 S.Ct. 2011 (2010). Courts are first to take into account

Aobjective indicia of society=s standards, as expressed in legislative enactments and state practice.@ Id. See also Atkins, 536 U.S. at 312 (A[T]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country=s legislatures.@)(quoting Penry v. Lynaugh, 492 U.S. 302 (1989)). Second, courts consider whether the punishment at bar comports with Athe standards

24 elaborated by controlling precedents and by the Court=s own understanding and interpretation of the Eighth Amendment=s text, history, meaning and purpose.@ Id.

A. Societal Standards show that Florida is an outlier with respect to its capital sentencing statute.

With respect to societal standards, thirty-one out of thirty-four death penalty states require unanimous death sentences and 32 do not allow judges to override the jury. Unanimous Sentencing in Capital Felonies, http://floridacapitalresourcecenter.org/statutes-rules/proposed-legislation/2012/.

The Federal Death Penalty Statute also requires a unanimous verdict. Only three states allow a death sentence to be imposed with a less than unanimous jury verdict: Alabama, Florida and Delaware. But even Alabama requires a minimum jury recommendation of 10 to 2, in favor of death, before a death sentence can be imposed. Delaware requires a unanimous vote on the finding of one aggravator before a sentence of death can be considered. Florida is the only state in the entire country that allows a jury to recommend a death sentence by a simple majority. As of 2012, only half of the persons given the death sentence in Florida could have been sentenced to death in any other state. The jury in Mr. Mann=s case rendered a verdict of 9 to 3. If Mr. Mann had been tried in any other state in the entire country, or in federal court, Mr. Mann would have received a life sentence.

25

Every other state has seen its death penalty rates decline. Jurors in North

Carolina did not sentence a single person to death last year, for the first time in 35 years. http://www.thecharlottepost.com/index.php?src=news&srctype=detail&category=

News&refno=5418. Florida is currently the only state with an increasing number of death sentences. This fact alone demonstrates the outlier position created by

Florida=s death penalty statute and the arbitrary and capricious effect of a system that does not require juror unanimity. Florida has the fourth largest population in the country, United States Census Bureau Annual Population Estimates, http://www.census.gob/popest/data/state/totals/2012/index.html, yet, Florida has the second largest number of inmates on death row, 411. Death Penalty

Information Center (ADPIC@), http://www.deathpenaltyinfo.org/death-row-inmates- state-and-size-death-row-year. Florida has one and a half times the population of

Pennsylvania (a state that requires a unanimous verdict) but twice the number of death sentenced individuals.

Florida=s percentage of the nation’s total annual death sentences last year was stunning. In 2012, seventy-eight individuals nationwide were sentenced to death, the second lowest number since the death penalty was reinstated in 1976.

DPIC, http://www.deathpenaltyinfo.org/2012-sentencing#Inmates. Twenty of those sentences, or 35%, were from Florida, up from fourteen in 2011 and the same

26 number in 2010. Mr. Mann asked the court to take judicial notice of the 22 death sentences in Florida last year and the jury verdicts in those cases. (WARRANT

PCR, Vol. VI, p. 116-1119.). The court did so at the March 11, 2013 hearing.

(WARRANT PCR , Vol. VII, p. 1237, n. 4.). In addition, in light of Florida=s death penalty scheme, and failure to require juror unanimity, Florida has the highest number of death row exonerations in the countryB twenty-three, or 16.5% of the nations 139 wrongful capital convictions. DPIC, http://www.deathpenaltyinfo.org/florida-1. More exonerations are surely coming.

Taken together, these statistics demonstrate that an innocent person charged with first degree murder in Florida is substantially more likely to be sentenced to death in Florida than if the exact same person was tried in any other death penalty state in the country. See also Raoul Cantero and Mark Schlakman, Florida ignores

Aunanimous jury@ legislation in death penalty cases at its peril, Miami Herald, Feb.

20, 2012. (AFlorida is an outlier insofar as allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority.

All 33 other death penalty states require some form of unanimity. ... Regardless of

... one=s views on capital punishment, maintaining the status quo and thereby

Florida=s outlier status in this country does not serve the cause of justice. States like

Texas and Georgia, known for their pro-death penalty stance, require unanimous juries. So should we.@) .

27

Further, recent studies of group decision-making in the context of jury verdicts in civil and capital cases conducted by social scientists and psychologists has established that the reliability and accuracy of group decision-making is diminished when jurors are not required to render a unanimous verdict. Majority jurors in cases where unanimity is not required tend to disregard the minority point of view. This is especially so if the minority jurors are members of an ethnic minority, or if the jury is composed of primarily more men or women. In those situations, the majority group tends to disregard the minority group=s point of view.

Non unanimous juries

Athreaten[] to discount the deliberations of minority jurors. Non unanimous juries are functionally equivalent to juries of less than twelve, as fewer than twelve jurors are required for a binding decision. Research indicates that smaller juries can lead to injustices, for they are less likely to contain minorities. Our nation has taken steps only recently to ensure better minority representation on juries.4 The implementation of non-unanimous jury sentencing risks marginalizing, once again, the views of minorities.”

Sourcebook of Criminal Justice Statistics; Monica K. Miller & Michelle N.

Kazmar, APsychology Research and Public Opinion Do Not Support Proposed

Changes to the Jury System,@ 30 Hamline L. Rev. 285 at 287 (Spring 2007);

Wanda D. Foglia & William J. Bowers, AShared Sentencing Responsibility; How

4 Swain v. Alabama, 380 U.S. 202 (1965); Batson v. Kentucky, 476 U.S. 79 (1986); Snyder v Louisiana, 552 U.S.472 (2008).

28

Hybrid Statutes Exacerbate the Shortcomings of Capital Jury Decision-Making,@

42 Crim. Law. Bull. 1 (2006).

Mr. Mann identified Dr. Neil Vidmar as an expert who could help educate and explain to the court why less than unanimous jury verdicts are unreliable or less reliable than unanimous jury verdicts as determined by scientific research and studies. Mr. Mann also stated that Dr. Vidmar would be able to testify as to specific facts that would affect the reliability of the nine to three jury verdict in Mr.

Mann=s case. Mr. Mann attached Dr. Vidmar’s affidavit to his Motion.

(WARRANT PCR Vol. IV, p.622-29).

Mr. Mann also argued that additional factors in conjunction with the lack of juror unanimity contribute to a determination that Mr. Mann=s sentence of death was unconstitutional in light of evolving standards of decency under the Eighth

Amendment. First, the trial occurred in a court room packed with members of the

League of Victims and Empathizers (LOVE), most of whom were friends and family of the victim. The victim=s father sent out fliers and letters to the community prior to jury selection and the fliers and letters were also distributed to potential jurors and others entering the court house, by either friends, the family and/or

LOVE members on the day of jury selection. (TR1990, V. 7, p. 827-28; V. 8, p.

1087-94).The LOVE members heckled defense counsel and defense witnesses during lunch and other breaks and stood outside the court house in large groups

29 creating a chilling effect on Larry Mann=s rights. (WARRANT PCR, Vol. V, p.

973-978). The crime and trial were infamous and received significant publicity in the local newspapers.

Had the post conviction court granted Mr. Mann a hearing, Dr. Vidmar would have been able to help educate the court about how, based on recent studies and widely accepted scientific principles, this type of atmosphere can have a psychological and sociological effect on the jury=s decision-making process, particularly when there is no requirement for a unanimous verdict, rendering the jury=s verdict unreliable within the meaning of the Eighth Amendment.

(WARRANT PCR, Vol. IV, p. 622-629).

Mr. Mann also attached a relevant newspaper article to his Motion for

Rehearing which came out the day before his Motion for Rehearing was due.

(WARRANT PCR, Vol. VII, p. 1253-63). As demonstrated in a series of juror interviews conducted by the Tampa Bay Times in 2012-2013 and described in the article jurors have a diminished sense of responsibility in violation of Caldwell v.

Mississippi and tend to disregard the views of minority jurors when they are not required to reach a unanimous verdict. See Zayas, Alexandra, Law doesn’t require unanimous jury for death sentence, Tampa Bay Times, March 16, 2013; also at

WARRANT PCR, Vol. VII, p. 1253-63). The juror can vote against the death penalty knowing that a death sentence will be imposed yet also knowing that they

30 did not have it on their conscience that they voted for death. As one juror explained, “I believe it should stay like it is, because it gives a person like me the opportunity that they can still give him the death penalty and some people have a clear conscience.” Id. Another juror described what happened during the deliberations in a different case. One of the jurors cried, said Juror Quentin Davis, but another juror said he “didn’t care,” and that it “wouldn’t change his mind.” Id.

Another group of jurors simply put their votes in a cup, which resulted in a simple majority vote and ended all further discussion. Id. The post conviction court rejected this newspaper article as “not properly before this court in a rehearing motion.” (WARRANT PCR, Vol.VII, p. 1308).

In further support of his claim, Mr. Mann relied on this Court’s acknowledgment that Fla. Stat. 921.141 has placed the Florida death penalty system as an outlier among other death penalty states. State v. Steele, 921 So. 2d

538, 548-550 (Fla. 2005). A[I]n light of development in other states and at the federal level, the Legislature should revisit the statute to require some unanimity in the jury=s recommendations.@ Id. at 548. At the time of this Court=s opinion in

State v. Steele, Florida was the only state in the country to decide that aggravators exist and to recommend a sentence of death by a mere majority. Id. at n. 3, 4, 5, 6,

7, 8 and 9 (collecting state statutes). The Federal Government also requires a unanimous sentencing verdict. 18 U.S.C. ' 3593 (d)(2000).

31

Mr. Mann also argued that, at the time when this Court issued the Steele opinion, 38 states retained the death penalty. Steele at 548. Since then four states have abolished the death penalty New Jersey (2007), New Mexico (2009), Illinois

(2011) and Connecticut (2012). The Death Penalty in 2012: Year End Report, published by the Death Penalty Information Center (December 2012). Oregon has a de facto moratorium and Maryland is on the verge of becoming the fifth state to abolish the death penalty in six years. http://en.wikipedia.org/wiki/Capital punishment in the United States. Further, in 2007, New York=s death penalty statute was overturned and the legislature elected not to reinstate the death penalty, leaving the state with no death penalty statute and no one on death row. In

Virginia, the Death Row population has dwindled to 8 from a peak of 57 in 1995.

A major reason for the decline is that fewer death sentences are being handed down; only two new inmates have been received in nearly 5 years. Larry O=Dell,

Virginia=s Death Row Population Down to 8, Richmond-Times Dispatch:AP, http://www.timesdispatch.com/news/state-regional/government-politics/virginia-s- death-row-population-down-to/article_333bd65e-70a6-5502-b947- e6bc5abf777b.html. Thus, Florida is even more of an outlier now than in 2005.

And, at the time of the Steele opinion, Florida=s number of new death sentences was not outstripping the rest of the country, as it is now.

The Connecticut Supreme Court has stated:

32

We perceive a special need for jury unanimity in capital sentencing. Under ordinary circumstances, the requirement of unanimity induces a jury to deliberate thoroughly and helps to assure the reliability of the ultimate verdict. The Aheightened reliability demanded by the Eighth Amendment in the determination whether the death penalty is appropriate; Sumner v. Shulman, 483 U.S. 66, 107 S.Ct. 2716, 2720, 97 L.Ed.2d 56 (1987); convinces us that jury unanimity is an especially important safeguard at a capital sentencing hearing. In its death penalty decisions since the mid-1970s, the United States Supreme Court has emphasized the importance of ensuring reliable and informed judgments. These cases stand for the general proposition that the Areliability@ of death sentences depends on adhering to guided procedures that promote a reasoned judgment by the trier of fact. The requirement of a unanimous verdict can only assist the capital sentencing jury in reaching such a reasoned decision.

State v. Daniels, 207 Conn. 374, 542 A.2d 306, 315 (1988) (internal citations omitted). While at the time the court issued its opinion, the analysis seemed cutting edge and revolutionary, in 2013, the Connecticut court’s reasoning is merely part of a growing national consensus.

B. Controlling precedents and the Court=s understanding and interpretation of the Eighth Amendment=s text, history, meaning and purpose demonstrates that Florida=s non-unanimous jury requirement does not comport with the 8th Amendment=s evolving standards of decency.

Mr. Mann also argued that the state post conviction court, in considering whether the punishment at bar comports with Athe standards elaborated by controlling precedents and by the Court=s own understanding and interpretations of the Eighth Amendment=s text, history, meaning and purpose, the Court has

33 emphasized that the Eighth Amendment cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.@ Furman v. Georgia, 408 U.S. at 310 (Brennan, J., concurring.)

Mann also argued that this is exactly what Florida=s outlier system has allowed. In allowing for a death verdict based on a simple majority, with no breakdown of which, if any, aggravators were found by a majority of jurors,

Florida=s death sentencing rates are growing along with its wrongful convictions.

The Florida death penalty system is the very definition of freakishly and wantonly applied.

In addressing Sixth Amendment challenges to jury systems, the Court, in

Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029 (1978), held that a state criminal trial of only five persons violated the Sixth and Fourteenth Amendments. The

Court noted that the purpose of a jury trial is to Aprevent oppression by the

Government.@ Id. at 229. AProviding an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge.@ Id. (internal citations omitted).

The Court found that based on empirical data, smaller juries are less likely to foster deliberation which leads to inaccurate fact-finding. Id. at 232. AWhen

34 individual and group decision-making were compared, it was seen that groups performed better because prejudices of individuals were frequently counterbalanced, and objectivity resulted. Groups also exhibited increased motivation and self-criticism. ... Because juries frequently face problems laden with value choices, the benefits are important and should be retained. In particular, the counterbalancing of various biases is critical to the accurate application of the common sense of the community.@ Id. These same criticisms and concerns are now known to apply to non-unanimous jury decision making also.

The Court has also noted that, “we have long been of the view that ‘[t]he very object of the jury system is to secure unanimity by a comparison of views and by arguments among jurors themselves.’ Allen v. United States, 164 U.S. 492, 501,

108 S.Ct. 546 . . . (1988).@ Jones v. United States, 527 U.S. 373, 382, 119 S.Ct.

2090 (1999). In a capital sentencing, it is important that a jury Aexpress the conscience of the community on the ultimate question of life or death.@ Lowenfeld v. Phelps, 484 U.S. 231, 238, 108 S.Ct. 546 (1988). The Court has also held that

Aunanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases, this requirement of unanimity extends to all issuesB character or degree of the crime, guilt and punishment C which are left to the jury.

... the jury=s decision upon both guilt and punishment of death should be imposed

35 must be unanimous.@ Andres v. United States, 333 U.S. 740, 749, 68 S.Ct. 880

(1948).

AThe very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.@ Allen v.

U.S. , 164 U.S. 492, 501-02, 17 S.Ct. 154 (1896).

The Court has also stated that there are Asize and unanimity limits that cannot be transgressed if the essence of the jury trial right is to be maintained.@

Snyder v. Louisiana, 447 U.S. 323, 330-31, 100 S.Ct. 2214 (1980). A fractured court in Johnson v. Louisiana/Apodaca v. Oregon, 406 U.S. 356 (1972) (plurality opinion) barely upheld a less than unanimous verdict of nine to three in a non- capital case as constitutional under the Sixth Amendment.

Mann argued that the post conviction court would need to conduct this type of an analysis in evaluating his claim.

36

C. Florida is also an Outlier in the International Arena by Allowing Juror Majority Death Sentences and with its stunning increase in number of death sentences handed down.

Mann also argued that the post conviction court must look to and take into account international laws and practices in other countries when evaluating his claim. Mann argued that no western democracy has retained the death penalty in many years. The countries that retain the death penalty and still actually execute people in the 2010s are: Iraq, Iran, Saudi Arabia, China, North Korea and the

United States. Those countries, other than the United States, are generally considered to be lacking in a history of democratic governance or principles.

But even countries with a less than stellar record of human rights require a unanimous death verdict. Barbados, for example, mandates that a jury must deliver a unanimous verdict in favour of death. (See http://www.state.gov/j/drl/rls/hrrpt/2011/wha/186489.htm.) Barbados, it should be noted, is a country marred by prisons condemned as Aovercrowded, harsh and degrading@. (See http://www.deathpenaltyworldwide.org/country-search- post.cfm?country=Barbados.) Death-sentenced prisoners are sometimes kept in cages. (Ibid.) Moreover, Barbados conducts executions by hanging. Florida takes pains to note the >humane= method by which it executes prisoners, yet permits the execution of a man for whom five jurors did not agree the death sentence should

37 be imposed at his first trial and three jurors at his re-sentencing. In this respect, at least, Barbados has a better human rights record than Florida.

By way of additional example, Ghana provides for execution by hanging or firing squad. (See http://www.deathpenaltyworldwide.org/country-search- post.cfm?country=Ghana.) One report shows over 700 prisoners are being kept in an area designed for 70 men. (See AfriMAP, The Open Society Initiative for West

Africa & The Institute for Democratic Governance, Ghana: Justice Sector and the

Rule of Law, p. 115, http://www.afrimap.org/english/images/report/AfriMAP_Ghana_Justice.pdf,

2007.) Yet, the Ghanaian government recognizes the fact that sentencing an individual charged with capital murder to death with less than a unanimous jury verdict would be wrong. (See http://www.deathpenaltyworldwide.org/country- search-post.cfm?country=Ghana.) See also http://www.state.gov/g/drl/rls/hrrpt/2009/wha/136099.htm (Bahamas) and http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Guyana

(Guyana).)

In addition, Amnesty International in its 2010 report on the imposition of the death penalty worldwide stated:

At the end of 2010 the global trend towards abolition of the death penalty could not have been clearer. While in the mid-1990s 40 countries on average were known to carry out executions each year, during the first years

38

of this century executions were reported in 30 countries on average. Most recently, 25 countries reportedly executed prisoners in 2008 while 19 countries B the lowest number ever recorded by Amnesty International B did so in 2009 . . . the number of countries that are abolitionist in law or practice has substantially increased over the past decade, rising from 108 in 2001 to 139 in recent years.

Amnesty International, Death Sentences and Executions 2010 http://www.amnesty.org/en/library/asset/ACT50/001/2011/en/ea1b6b25-a62a- 4074-927d-ba51e88df2e9/act500012011en.pdf)

In spite of this argument and proposed testimony, that was unrefuted by the record, the post conviction court denied Mr. Mann the opportunity to present evidence on his claim. The court held that Mr. Mann was procedurally barred from raising this claim. (WARRANT PCR Vol. VII, p. 1236). The post conviction court reasoned that “changes in the laws of other states and nations regarding the imposition of the death penalty in comparison with Florida’s current death penalty statistics, particularly the number of death sentences imposed in 2012, and 2) the research of Dr. Neil Vidmar, Ph.D., on decision making in non-unanimous jury verdicts,” does not constitute “newly discovered evidence for the purpose of Rule

3.851.” (WARRANT PCR Vol. VII, p. 1236-27). “Additionally, evolutionary developments in the laws of other states or nations are not newly discoverable evidence cognizable in a post conviction motion. Fuster v. State, 664 So.2d 18, 19

(Fla. 3d DCA 1995).” Id. at 1237.

39

The state post conviction court erred. As Mr. Mann argued in his Motion for

Rehearing filed with the post conviction court, Fuster did not involve an Eighth

Amendment evolving standard of decency claim. (WARRANT PCR Vol. VII, p.

1254-55). The court in Fuster qualified its statement, as Fuster had merely relied on a single case from a New Jersey state court. The Fuster court’s statement was that, “evolutionary developments in the law are not cognizable in post-conviction proceedings unless emanating from the Supreme Court of Florida or the United

States Supreme Court.” (emphasis added). Fuster, 664 So.2d at 19.

Fuster does not resolve or bar Mr. Mann’s Eighth Amendment claim based on law emanating from the United States Supreme Court. A state court can provide more rights than are required by the federal constitution, but it cannot deprive

Mann of his federal constitutional rights under the Eighth and Fourteenth

Amendments by placing arbitrary barriers in his ability to assert his constitutional claim. “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. . . If the

Constitution and laws of the United States are to be enforced, this Court cannot accept as final the decision of the state tribunal as to what are the facts alleged to give rise to the right or to bar the assertion of it even upon local grounds.” Davis v.

Wechsler, 263 U.S. 22, 24-25, 44 S.Ct. 13 (1923). If, however, the post conviction

40 court was correct in determining that Mann cannot raise his claim under Fla. R.

Crim. Pro. 3.851, then Mann must be allowed to raise an evolving standard of decency claim in an original petition for state habeas in this Court as argued in his

State Habeas Petition filed simultaneously with this appeal.

The post conviction court also distinguished Graham v. Florida, 130 S.Ct.

2011(2010), and three other Supreme Court cases, because, “they did not involve a successive 3.851 motion after a death warrant was signed and the procedural bars discussed above.” (WARRANT PCR Vol. VII, p. 1237). To the extent that the post conviction court determined that because Mr. Mann is under a sentence of death and therefore his right to raise a constitutional challenge is somehow lessened and the procedural bars are greater, that in and of itself, would be unconstitutional and raise Equal Protection and Eighth Amendment concerns. As

Mann argued at the Case Management Conference, Graham v. Florida originated as a post conviction motion in a Florida State circuit court. Graham was not under warrant, that is true, since he had not been sentenced to death. It seems that if a life

–sentenced prisoner can raise the claim through a post conviction proceeding, a death- sentenced prisoner should equally be able to raise the claim. The post conviction court’s distinction is difficult to discern.

The post conviction court also relied on this Court’s passing reference in

Howell v. State, 2013 Fla. LEXIS 297 (Fla. Feb. 25, 2013) (unpublished) for the

41 holding that “studies and reports” aren’t newly discovered evidence. However,

Mann was not simply relying on “studies or reports,” but on facts involving the outlier status of Florida’s death penalty statute. But, regardless, as stated supra,

Mann must be given a meaningful vehicle in which to raise his Eighth Amendment evolving standard of decency claim.

The post conviction court also found the claim to be “successive,” because some of the facts connected to Mann’s claim had been raised in his initial 3.850 motion. (WARRANT PCR Vol. VII, p. 1238). The post conviction court appears to misapprehend the distinction between “facts” and “claims” as it relates to successive post conviction motions. A movant can raise a separate claim based on facts that may be relevant to another claim based on an entirely different legal theory without the “claim” being successive. The similar facts the post conviction court took issue with were thinly referenced in the context of a Sixth Amendment ineffective assistance of trial counsel claim in Mr. Mann’s initial 3.850 motion.

However, merely because some of the facts may be the same cannot logically be a basis for or honestly preclude Mr. Mann from raising an Eighth Amendment evolving standard of decency claim regarding jury deliberations in a later motion.

Such a legal principle would lead to unjust and legally perverse results.

Lastly, the post conviction court determined the claim was without merit.

(WARRANT PCR Vol. VII, p. 1238-39). The court made this determination based

42 on this court’s decisions in Howell and Kopsho v. State, 84 So.3d 204, 220 (Fla.

2012)(citing Parker v. State. 904 So. 2d 370, 383 (Fla. 2005)). The court stated,

“Thus, even considering Florida’s outlier status, its capital sentencing practices have been analyzed and held constitutional.” Id. at 1239. However, Kopsho and

Parker did not involve an Eighth Amendment claim; the juror unanimity challenge was argued under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), which involves a Sixth Amendment analysis. Further, this Court’s limited opinion in

Howell did not set out this Court’s reasoning or provide guidance for lower state courts called upon to address this issue. Lastly, the court stated that it would decline to find the statute unconstitutional absent controlling case law that applies retroactively compelling it to do so. (WARRANT PCR Vol. VII, p. 1239). The court also indicated “it was unwilling to apply the current trends of other states,” to

Mr. Mann’s 1990 proceedings. Id. However, it is not just Mr. Mann’s sentence of death but his 2013 execution that is unconstitutional. Under the post conviction court’s reasoning, no defendant would be able to challenge his death sentence and execution under the Eighth Amendment even if every state in the nation except

Florida abolished the death penalty tomorrow. The post conviction court’s merit analysis must fail.

This Court should grant Mr. Mann’s appeal and declare the portion of the

Florida death penalty statute allowing non-unanimous jury verdicts

43 unconstitutional under the Eighth Amendment’s evolving standards of decency requirements. Or, alternatively, this Court should consider his argument as presented in his State Habeas Petition.

ARGUMENT II

FLORIDA’S DEATH WARRANT SELECTION PROCESS IS UNCONSTITUTIONAL UNDER THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. THE POST CONVICTION COURT ERRED IN SUMMARILY DENYING THIS CLAIM.

As noted above, almost a month prior to the signing of his death warrant, in

February of 2013, Mr. Mann sought to join an existing Civil Rights Action, pursuant to 42 U.S.C. §1983, in the Middle District Court of Florida, Jacksonville

Division. (Case No. 3:10-cv-1130-MMH-MCR). Mr. Mann and the other

Plaintiffs also sought leave to amend the existing complaint in light of recent changes in the lethal injection protocols and newly available information regarding the State’s ability to legally obtain and use pentobarbital. On February 8, 2013, pursuant to Middle District Local Rule 3.01 (g), Mr. Mann’s counsel contacted the

Attorney General’s Office, who represented the Defendants in that action, to ascertain their position on amending the Complaint and adding Plaintiffs to the cause of action. ROA Vol. V, p. 811-812. The Assistant Attorney General assigned to the case never responded to the email.

44

On February 18, 2013, Mr. Mann (and other similarly situated Plaintiffs) filed a motion seeking to amend the existing complaint and join the action. The Attorney

General’s Office was served with the Motion and Amended Complaint. On

February 19, 2013, the Attorney General’s Office was served with Interrogatories and Requests for Production of Documents. Nine days later, on March 1, 2013, the

Governor signed a death warrant for Mr. Mann.

Despite pending legal action, Governor Scott selected Larry Mann as the next person to be executed from among the over 400 people currently on Florida’s death row. 94 of those individuals have exhausted their appeals and are warrant eligible.

Jim Saunders, Florida House looks to speed up death penalty, naplesnews.com.

(March 5, 2013), www.naplesnews.com/news/2013/mar/05/fla-house-looks-speed- death-penalty/ (last visited March 23, 2013). The sheer randomness with which the Governor goes about making life-and-death decisions is unconstitutional.

Without some scheme imposing objective criteria to determine who dies by the

State’s hand, the warrant process is “little more than a lottery system” like that condemned decades ago. Furman v. Georgia, 408 U.S. 238, 293 (1972)(Brennan,

J., concurring).

A. The Arbitrary imposition of the death penalty is prohibited by the Eighth Amendment. Florida’s arbitrary warrant selection process is akin to the arbitrary imposition of the death penalty and is similarly prohibited by the Eighth Amendment.

45

The Eighth Amendment, in tandem with the Fourteenth, prohibits States from imposing cruel and unusual punishments. Robinson v. California, 370 U.S.

660 (1962). In Furman v. Georgia, 408 U.S. 238 (1972), the United States

Supreme Court held, in five separate concurring opinions, that the death penalty must be imposed fairly and consistently in order to pass constitutional muster. The

Court established a substantive constitutional right under the Eighth Amendment which prevents the arbitrary imposition of the death penalty.

The Furman Court ruled that the “Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed.” Id. at 310 (Stewart,

J., concurring). Death penalty procedures which are “little more than a lottery system” were prohibited as they were held to violate the protection afforded by the

Eighth Amendment. Id. at 293 (Brennan, J., concurring). The infliction of the death penalty is cruel and unusual and, hence, forbidden by the Eighth Amendment when its imposition is akin to being struck by lightning.” Id. at 309 (Stewart, J., concurring). The execution of a death sentence on a “capriciously selected” inmate is prohibited by the Eighth Amendment. Id. at 309-10 (Stewart, J., concurring).

The Court ruled the relevant capital statutes unconstitutional, stating that the laws contained no standards to govern who receives the death penalty. Tellingly, the

Court, referring to standards applicable to the judge and jury whose

46 determinations, unlike the Florida Governor, are subject to appellate review, stated,

“[p]eople live or die, dependent on the whim of one man or of 12.” Id. at 253

(Douglas, J., concurring).

The United States Supreme Court subsequently held, in Gregg v. Georgia,

428 U.S. 153 (1976), that the imposition of the death penalty could be constitutional, provided that satisfactory procedures were in place to reduce the risk of arbitrary infliction of it. Similarly, in considering Florida’s death penalty scheme, the United States Supreme Court relied on the existence of safeguards against the imposition of the death penalty in an arbitrary manner in upholding

Florida’s scheme. Proffitt v. Florida, 428 U.S. 242 (1976). The existence of meaningful protections is an irreducible requirement for a death penalty scheme to be constitutional. The absence of meaningful protections risks the arbitrary imposition of the death penalty, and places such a deficient scheme at odds with the Eighth Amendment.

In Florida, the Governor has the absolute discretion and unconstrained power to schedule executions. The decision by a Florida governor to sign a death warrant is just as necessary as the sentencing judge’s decision to sign his name to a document imposing a sentence of death. In Florida, no death sentence can be imposed unless the judge signs the sentencing order imposing a sentence of death.

Similarly, no individual who receives a sentence of death will in fact be executed

47 until the Governor exercises his discretion to sign a death warrant. There are absolutely no governing standards as to how the Governor should exercise his warrant signing power. In fact, the Governor’s discretion is absolute and subject to no review at all. This process is veiled in secrecy, with no opportunity for the condemned to be heard.

The Governor’s absolute discretion to decide who lives and who dies must be compared with the standards and limits placed upon a sentencing judge’s decision to impose a death sentence. The Eighth Amendment requires there to be a principled way to distinguish between who is executed by a state and who is not. It is this constitutional principle that has required the sentencing judge to specifically address what aggravating and mitigating circumstances are present. It is because of the Eighth Amendment that Florida requires the sentencing judge to weigh the aggravating circumstances against the mitigating circumstances when deciding whether to impose a sentence of death.

In 1992, the United States Supreme Court found that because the jury’s role in making a sentencing recommendation was an essential step in the Florida capital scheme, the jury should be viewed as a co-sentencer and its decision making process should be subject to the same Eighth Amendment constraints that had been imposed upon the sentencing judge in a capital case in Florida. Espinosa v.

Florida, 505 U.S. 1079, 1082 (1992).

48

There is really no principled way to distinguish between the individual who signs a document entitled “the sentence” which imposes a death sentence, a necessary step before an individual in Florida can be executed, and the individual who signs a document entitled “death warrant” which is an equally necessary step before an individual in Florida can be executed. For the same reasons that the

United States Supreme Court determined that the Florida penalty phase jury’s recommendation was just as much an essential component to the death penalty scheme as the judge’s decision to impose a death sentence and found the Eighth

Amendment constraints applicable to the penalty phase jury, the Governor’s absolute power to sign or not sign a death warrant must be subject to the Eighth

Amendment. Without the Governor’s signature upon a death warrant, an individual housed on Florida’s death row will never be executed. Currently without any meaningful standards constraining the Governor’s otherwise absolute discretion, the Florida capital sentencing scheme violates the Eighth Amendment principles set forth in Furman.

B. Florida’s warrant selection process lacks any meaningful safeguards and is violative of due process under the Fifth and Fourteenth Amendments.

The manner in which the Governor selects which death row inmate will receive the ultimate punishment is completely lacking in transparency. Fl. Stat. §

922.052 states that “[t]he sentence [of death] shall not be executed until the

49

Governor issues a warrant, attaches it to the copy of the records, and transmits it to the warden, directing the warden to execute the sentence at a time designated in the warrant.” The statute is silent on the timing and selection process for the signing of a death warrant.

The vast majority of states place responsibility for scheduling execution dates on the judicial branch or the Attorney General’s Office, or a combination of the two. A review of the practices of other death penalty states reveal that most commonly, once a person is finished with their appeals in the courts, either the court sets a date upon its own motion, or the Attorney General or local district attorney file a motion, with notice to the defendant and defendant’s counsel, asking for an execution date to be set. Even in the states where the Governor selects whose warrant to sign, there are restrictions on his discretion and other mechanisms for providing notice to the defendant and his counsel.

As far as counsel has been able to determine in the shortened time frames provided under 3.851(h), there is only one other State that provides for the

Governor to have unfettered discretion in the selection of an execution date and that is New Hampshire. NH Rev. Stat. § 630:5 at XVII. 5 However, there is only

5 See 61 Pa.C.S.. § 4302, 42 Pa.C.S. § 9711(i)(Pennsylvania law instructs the Governor to sign the death warrant within 90 days upon receipt of the record that the sentence of death has been upheld. The statute sets forth specific time frames so the Defendant and his counsel are on notice.); See A.C.A. §16-90-507

50 one individual on New Hampshire’s Death Row (and there is no death chamber) so it can hardly be argued that the Governor selected arbitrarily among any other candidates. Death Penalty Information Center, http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row- year#state (last visited March 23, 2013). Therefore, Florida’s death scheme is vastly different from the rest of the country and imposes no meaningful constraints on the Governor’s exercise of seemingly unfettered discretion.

Florida’s death scheme exerts no control on the Governor’s selection of death warrant recipients. From the pool of 94 warrant eligible death row inmates, the Governor is able to select an inmate for the death penalty without that inmate

(Arkansas law states that the Governor may set the execution date only if the execution did not occur on date previously set by the Court); See N.R.S. 176.345, 176.495,176.505 (In Nevada, the trial court issues a warrant when the death judgment is filed by the appellate court. It is automatically stayed during appeal, and the Court then automatically issues a warrant on receipt of the remittur when the appeal is denied. The Attorney General or local prosecutor can also petition the court for a warrant after the close of legal proceedings.); See Ariz. R. Crim. P. 31.17(c)(3), Ariz. Rev. Stat. §13-759 (In Arizona, the Attorney General files a motion, with notice to counsel, for a warrant of execution with the Arizona Supreme Court. Once it is calendared, the Court issues an execution date within 35 to 60 days.); See § 546.710 R.S. Mo. (The Missouri Supreme Court sets the execution date.); and see K.R.S. §431.218 (In Kentucky, the mandate affirming judgment sets execution for the 5th Friday following the date of the mandate. If the execution does not take place on that date, the Governor “may from time to time appoint another day for execution.”).

51 being able to participate in the warrant selection process in any way, shape, or form. The warrant selection process is arbitrary and results in an inmate dying because of the whim of one man. As noted above, both the Office of the Governor and the Office of the Attorney General have refused to provide public records detailing how an individual is selected for execution in Florida. The circuit court sustained their objections.

In addition, the warrant selection process is inconsistent because the whim of the Governor will change from incumbent to incumbent. The current system also runs the risk of improper external influences swaying the Governor’s decision.

For example, in the case of State of Florida v. Paul Beasley Johnson, former

Governor Charlie Crist signed Mr. Johnson’s death warrant as a result of an online petition started by Polk County Sheriff Grady Judd, which persuaded approximately 3,000 people to contact the Governor’s Office asking for the warrant to be signed. Bill Kaczor, High Court Stays Paul Beasley Johnson’s

Execution, The Ledger.com (October 28, 2009 at 9:46 pm), http://www.theledger.com/article/20091028/NEWS/910285064?template=printart

(last visited March 7, 2013). This Court stayed the execution and subsequently issued an opinion in Mr. Johnson’s case granting a new penalty phase because “the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief.” Johnson v. State, 44 So. 3d

52

51, 53 (Fla. 2010). Similarly, in February of 2012, Governor Rick Scott signed the death warrant of David Alan Gore after a January Editorial board meeting with

Scripps Treasure Coast Newspapers. Melissa E. Holsman, Gov. Rick Scott:

Signing David Gore’s death warrant in Vero Beach ‘right thing to do for the state’,

Scripps editorial board meeting led governor to sign death warrant, TCPalm.com.

(February 29, 2012 at 12:32 p.m., updated at 8:15 p.m.) http://www.tcpalm.com/news/2012/feb/29/its-the-right-thing-says-governor-after- signing/?print=1 (last visited March 7, 2013).

To the extent that the Governor allowed others to influence his decision, his actions arbitrarily excluded Mr. Mann from participating in this process. Of course, the touchstone of due process is notice and reasonable opportunity to be heard. The right to due process entails “notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Board. Of Education v.

Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313 (1950). “[F]undamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause.” Ford v.

Wainwright, 477 U.S. 399, 424 (1986) (Powell, J. concurring in part and concurring in the judgment).

The flaws in Florida’s warrant selection process are heightened in Mr.

Mann’s case, due to the more than 30 years of continuous public pressure exerted

53 in this case beginning with the jury, and continuing throughout the state and federal courts. The public pressure has extended into state and local politics as well. The League of Victims and Empathizers set out fliers and leaflets urging members of the community to pack the courtroom for Mr. Mann’s 1990 resentencing to ensure that he was sentenced to death. Leaflets about the need to sentence Mr. Mann to death or he would be released into the community on parole were distributed at the court house on the day of jury selection. Two jurors who ultimately sat on Mr. Mann’s jury were given the leaflets. TR 1990, Vol. 7, p. 827-

28; Vol. 8, p. 1087-94.

As noted above, the victim’s mother was a driving force behind the passage of Florida Constitutional Amendment Article I, §16(b). She campaigned for Jeb

Bush as a candidate over Lawton Chiles because Chiles had failed to execute Larry

Mann during his term in office, a feat which was not legally possible given that his appeals were still pending. She actively campaigned against two sitting Florida

Supreme Court judges, the Honorable Rosemary Barkett and the Honorable

Leander Shaw, because she felt they were “soft on crime”, especially on capital punishment.

Community and family members, including the elected Supervisor of

Elections, wrote over 120 letters to Judge Case, urging him to sentence Mr. Mann to death. The victim’s father wrote to the federal district court asking the court to

54 address Mr. Mann’s case. In September of 2010, the Attorney General filed a

“Motion for Ruling on Petition” asking the district court to rule and the District

Court issued its ruling two months later. At least one family member called the

Governor’s Office about Mr. Mann’s case. Because the Governor refused to provide public records in this case, it is unknown whether there have been additional calls and letters. However, given the continuous public pressure regarding Mr. Mann’s case, it seems hard to believe there is not wealth of additional correspondence in the Governor’s files.

The decision to authorize an execution should not turn on the word of unknown witnesses, undisclosed letters from victims’ family members, criticism from the press, or one-sided prosecutor advocacy. The signing of Mr. Mann’s warrant over the 94 other individuals that are eligible on Florida’s death row was nothing more than a lottery. Such an arbitrary reason for the choosing of Mr.

Mann for execution, with no advance notice to Mr. Mann or his counsel, is a violation of due process.

As noted above, in virtually all other states, the warrant selection and signing function is the responsibility of the judicial branch, or is initiated upon a motion by the Attorney General with notice to the defendant and his counsel.

Florida cannot, by operation of its unique warrant selection process, seek to cloak that process from judicial review. The State cannot take a traditionally judicial

55 function, expropriate it to the executive branch and then argue that the executive’s decisions are immune from constitutional scrutiny. The arbitrary manner in which

Mr. Mann’s warrant was signed is a violation of his constitutional rights under the

Fifth and Fourteenth Amendments.

C. The lower court’s rulings failed to squarely address Mr. Mann’s claims and/or are incorrect as a matter of law.

The lower court identified four reasons for denying Mr. Mann’s claim. First, the lower court denied Mr. Mann’s claim as procedurally barred. In doing so, the lower court misapphrended Mr. Mann’s claim. The lower court stated that

“[d]efendant is making a facial challenge to the Governor’s authority to sign a death warrant under §922.052, Fla. Stat. As pointed out by the State, the statute and the Governor’s broad authority in signing death warrants have not changed in any material respect for over twenty years.” WARRANT PCR Vol. VII, p. 1239.

Mr. Mann did not solely make a facial challenge to the Governor’s authority. He argued that the Governor’s decision to sign his death warrant was a violation of his due process rights under the Fifth and Fourteenth Amendments and constituted an arbitrary imposition of the death penalty in violation of the Eighth Amendment.

It remains unclear to Mr. Mann how he could have raised a claim that the

Governor’s decision to sign his warrant was unconstitutional unless and until the

Governor actually signed his warrant, which occurred on March 1, 2013. Prior to

56 that time, the claim was not ripe. The lower court erred in finding the claim to be procedurally barred.

Second, the lower court found that this Court’s precedents dictate a denial of

Mr. Mann’s claim on the merits. The court cited Valle v. State, 70 So.3d 530 (Fla.

2011), Marek v. State, 8 So.3d 1123 (Fla. 2009), Gore v. State, 91 So.3d 769 (Fla.

2012), and Ferguson v. State, 101 So.3d 362 (Fla. 2012). WARRANT PCR Vol.

VII, p. 1240. Without addressing any of the evidence cited above, the lower court further found that the fact that Mr. Mann’s sentence was imposed 23 years ago and

“his judgment and sentence have been the subject of many years of state and federal post conviction proceedings…refute the Defendant’s claim that improper external influence resulted in a shortened post conviction process after his resentencing.” Id. at 1241. The lower court has misapphrended Mr. Mann’s claim and has failed to address the evidence presented in support of his claim. Mr. Mann was not arguing that his post conviction process had been shortened. Mr. Mann was arguing that the pervasive pattern of 30 years of pressure to get Mr. Mann executed, including a television campaign ad attacking a sitting Governor for not executing Mr. Mann during his term of office, is evidence of improper external influences that led to the signing of his warrant a mere four months after he became warrant eligible. Because the lower court denied an evidentiary hearing on this claim, Mr. Mann was not able to offer additional evidence in support of this

57 pervasive pattern of conduct that resulted in Mr. Mann’s arbitrary selection for execution.

Third, the lower court denied Mr. Mann’s claims because this Court’s

“precedent dictates the denial of this claim based on the principle of separation of powers.” Id. at 1241. The court noted that given the precedent from this Court, it found “no reason in this case to cross the lines drawn by the separation of powers doctrine.” Id. at 1242. However, the lower court failed to address Mr. Mann’s argument that the Eighth Amendment jurisprudence of the United States Supreme

Court is replete with instances in which limits have been imposed on criminal punishment statutes passed by state legislatures and signed into law by Governors.

See, e.g. Furman, 408 U.S. at 238; Woodson v. North Carolina, 428 U.S. 280

(1976); Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 130 S. Ct.

2011 (2010); Miller v. Alabama, 132 S.Ct. 2455 (2012). Mr. Mann argued that the

Supreme Court itself has applied Eighth Amendment scrutiny directly to the

Executive branch. See, e.g. Baze v. Rees, 553 U.S. 35 (2008); Ohio Adult Parole

Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244 (1998). The manner in which the Executive branch directs an execution be carried out is not removed from the protections afforded by the Fifth, Eighth, and Fourteenth Amendments. The lower court wholly failed to address these arguments. Moreover, this Court’s precedents that were cited by the lower court have not squarely addressed this argument.

58

Finally, the lower court denied this claim because it found Mr. Mann’s claim was “not distinguishable from prior case law.” WARRANT PCR Vol. VII, p.

1242. The lower court failed to address Mr. Mann’s arguments that none of this

Court’s prior precedents dealt with a factual situation like Mr. Mann’s case where his warrant was signed four months after he became warrant eligible as a result of continuous public pressure that began with packing the courtroom with victim advocates to pressure the jury and the sentencing judge into sentencing him to death, and continued throughout his state and federal proceedings. The public pressure in Mr. Mann’s case extended into state and local government politics as well. Mr. Mann’s case is distinguishable from this Court’s prior precedents. In the alternative, Mr. Mann respectfully argues that this Court’s prior precedents upholding the Governor’s sole discretion to sign death warrants were wrongly decided. Mr. Mann maintains that Florida’s warrant selection scheme, as applied to Mr. Mann, violates the Fifth, Eighth, and Fourteenth Amendments to the United

States Constitution.

ARGUMENT III

MR. MANN HAS BEEN DENIED ACCESS TO PUBLIC RECORDS TO WHICH HE IS ENTITLED, IN VIOLATION OF FLA. R. CRIM. P. 3.852, FLA. STAT. § 119, BRADY V. MARYLAND.

Mr. Mann sought public records pursuant to Florida Statutes Chapter 119,

Florida Rule of Criminal Procedure 3.852(h)(3) and (i), and Brady v. Maryland,

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373 U.S. 83 (1963). The State objected to Mr. Mann’s requests to the extent they were made under Brady. WARRANT PCR Vol. II, p. 276. The State’s assertion that Brady does not apply in post conviction is especially troubling in light of the fact that they have adamantly refused to turn over public records. The assertion is also a misstatement of the law. This Court has recognized that Brady applies in post conviction:

Duckett claims that the State is under a continuing duty throughout all proceedings to comply with Brady. See Strickler, 527 U.S. 263, 144 L.Ed. 2d 286, 119 S.Ct. 1936; High v. Head, 209 F.3d. 1257, 1264 n.8 (11th Cir. 2000)(“The State’s duty to disclose exculpatory material is ongoing.”). This duty extends to post conviction proceedings. See Thompson v. Calderon, 151 F.3d 918, 935 n.12 (9th Cir. 1998)(“The Brady duty is an ongoing one, and continued to bind the prosecution throughout [defendant’s] habeas proceedings”)...this is a correct statement of the law…”

Duckett v. State, 918 So.2d 224,239 (Fla. 2005)(emphasis added).

This Court has ruled that collateral counsel must obtain every public record in existence regarding a capital case or else a procedural default will be assessed against the defendant. Porter v. State, 653 So.2d 375 (Fla. 1995), cert. denied, 115

S.Ct. 1616 (1995). However, a concomitant obligation under relevant case law as well as Chapter 119 rests with the State to furnish the requested materials. Ventura v. State, 673 So.2d 479 (Fla. 1996).

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As noted above, on March 5, 2013, Mr. Mann requested public records from various agencies, including the Governor, the State Attorney’s Office, and the

Attorney General’s Office regarding outside pressure/influences that led to the signing of Mr. Mann’s death warrant. The agencies refused to provide public records and argued in part that Mr. Mann’s claim regarding the arbitrary signing of his warrant was untimely. When the State’s inaction in failing to disclose public records results in a capital post conviction litigant’s inability to fully plead claims for relief, the State is stopped from claiming that the post conviction motion should be denied or dismissed. Ventura v. State, 673 So.2d 479 (Fla. 1996)(“The State cannot fail to furnish relevant information and then argue that the claim need not be heard on its merits because of an asserted procedural default that was caused by the State’s failure to act.”).

In Sims v. State, 753 So.2d 66, 72 (Fla. 2000), Justice Anstead cautioned that

“We need to be very careful that we not end up with an outcome where a death- sentenced defendant, whose life may literally be affected, is barred from enforcing his constitutional right as a citizen to access to public records that any other citizen could routinely access.” (Anstead, J., concurring). This is exactly what has occurred in Mr. Mann’s case and what routinely occurs in death penalty cases.

Justice Anstead had earlier emphasized that “[t]rial courts must be mindful of our intention that a capital defendant’s right of access to public records must be

61 recognized under this rule” because “[i]f there is any category of cases where society has an interest in seeing that all available information is disclosed, it is obviously in those cases where the ultimate penalty has been imposed.” In re

Amendment to Florida Rules of Criminal Procedure-Capital Postconviction Pub.

Records Prod., 683 So.2d 475, 477 (Fla. 1996)(Anstead, J., specially concurring).

Furthermore, Justice Anstead acknowledged assurances from the State and its agencies that they will essentially follow an “open file” policy. Id. This promise has not been fulfilled. Instead, these agencies have continuously shielded themselves with a harsh and unconstitutional interpretation of Rule 3.852 to avoid turning over public records to capital defendants, including Mr. Mann. If any other citizen requested the public records from the Governor, State Attorney, and the

Attorney General regarding Mr. Mann’s selection for a death warrant, they would have been granted access to these materials. Other than the Clemency records, no argument as to confidentiality or any other privilege was exerted over the records.

The requests were denied because the lower court credited the state’s arguments that they were not relevant to a colorable claim for post conviction relief. Any other citizen would not have to make the same showing. This is a denial of Mr.

Mann’s Equal Protection Rights.

Mr. Mann was prohibited from fully developing his claim that his warrant was arbitrarily signed because he was refused access to records relating to the

62 process by which Mr. Mann was selected to receive a death warrant. The circuit court’s denial of those requests prohibited Mr. Mann from fully presenting and litigating this claim. Given the continuous contact the State has had with the victim’s family and as evidenced by its actions in moving the federal district to court to issue a ruling on Mr. Mann’s habeas petition, as well as the State’s absolute refusal to provide any public records about the matter, there is a legitimate question of when the Attorney General and/or the State Attorney knew of Mr.

Mann’s warrant and what their involvement was in the warrant selection and timing process.

In nearly every other state in the nation, Mr. Mann and his counsel would have had notice about his selection for a warrant and the setting of an execution date. From secrecy over lethal injection and how the State obtains the execution drugs, the complete denial of access to the clemency process, including the concealment of an inmate’s own medical records, to the arbitrary warrant selection process, the State of Florida continually keeps capital defendants and their counsel in the dark. The State of Florida claims that it is “proud to lead the nation in providing public access to government meetings and records” because the

“[g]overnment must be accountable to the people.” http://www.myflsunshine.com/

(last visited March 24, 2013). The State also touts that, “In Florida, transparency is not up to the whim or grace of public officials. Instead, it is an enforceable right.”

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Id. However, in practice, in a setting where transparency is needed most, the State is keeping a capital defendant in the dark.

Mr. Mann, a prisoner on Florida’s Death Row, is about to be executed without being able to enforce “his constitutional right as a citizen to access to public records that any other citizen could routinely access.” Sims v. State, 753

So.2d 66, 72 (Fla. 2000)(Anstead, J., concurring). The lower court’s denial of Mr.

Mann’s access to public records was an abuse of discretion. This Court should order the records disclosed, and remand to the circuit court for a full and fair hearing.

ARGUMENT IV

INITIAL-REVIEW POST CONVICTION COUNSEL FAILED TO PROPERLY RAISE AND OBTAIN A HEARING ON A CLAIM OF INEFFECTIVENESS OF TRIAL COUNSEL AT MANN=S RE-SENTENCING TRIAL FOR FAILING TO PRESENT MITIGATION. MARTINEZ V. RYAN MARKS A TECTONIC SHIFT IN THE LANDSCAPE WHERE THE SUPREME COURT OF THE UNITED STATES ESTABLISHED A RULE IN EQUITY TO ALLOW FOR THE PRESENTATION OF CLAIMS THAT WERE PROCEDURALLY BARRED DUE TO INITIAL REVIEW COUNSEL=S DEFICIENT PERFORMANCE. THIS COURT SHOULD EXTEND THE EQUITABLE PRINCIPLES OF MARTINEZ TO STATE COURT PROCEEDINGS.

The lower court erred in denying Mr. Mann an evidentiary hearing on this claim as it was not refuted by the record. Had trial counsel properly investigated

Mr. Mann’s case, they would have discovered a wealth of mitigation to present to

64 the jury to support of a life sentence for Mr. Mann. First, had they conducted an investigation within prevailing norms, they would have been able to present evidence regarding Mr. Mann’s positive adjustment to prison. In Skipper v. South

Carolina, 476 U.S. 1, 4, 106 S. Ct. 1669 (1986), the Court held that evidence of a defendant=s conduct in jail after the crime, but prior to trial, “must” be considered for purposes of mitigation. In presenting this evidence, prevailing norms recommend that counsel should consider presenting lay witness testimony from

Aprison guards@ and make every effort to present information on this subject to provide the factual support for the expert=s conclusions. American Bar Association

Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases, 10.11 (Commentary, p. 113) (2003). Counsel should also address concerns of future dangerousness, even when not a statutory factor in aggravation. AStudies show that >future dangerousness is on the minds of most capital jurors, and is thus

Aat issue== in virtually all capital trials.=@ American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 10.11

(Commentary, p. 113) (2003). AEvidence that the client has adapted well to prison and has had few disciplinary problems can allay jurors= fears and reinforce other positive mitigating evidence.@ Id.

Had trial counsel obtained Mr. Mann’s prison records, they would have been able to demonstrate that he did not receive any disciplinary reports while on Death

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Row. Had they properly investigated, they could have presented the testimony of

James Aiken, who would have testified that Mr. Mann would not pose any danger to guards, staff, or other prisoners if given a life sentence. WARRANT PCR Vol.

VI, p. 1120-23. They could have also presented testimony from guards that Mr.

Mann was a kind, compliant prisoner, who was genuinely devoted to studying the

Bible.

Further, counsel=s failure to consult with and present an expert such as a psychologist and toxicologist to explain the effects of alcohol and to give the jury and the trial judge an informed mechanism to understand the effects of alcohol on

Mr. Mann=s brain at the time of the crimes was below prevailing norms. See

American Bar Association Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases, 11.4.1 (B) (1989); 11.4.1. (D) (2)(B) (The lawyer should Aexplore the existence of other potential sources of information relating to the offense, the client=s mental state, and the presence or absence of any aggravating factors).

Had counsel consulted with and presented a toxicology expert, such as Dr.

Alex Morton, that expert could have offered an objective, scientific analysis of the effects alcohol has on the human brain and could have linked the amount of alcohol Mr. Mann ingested to explain his mental processes. WARRANT PCR Vol.

III, p. 563-571; Vol. IV, p. 572-621. In combination with his childhood and

66 history of alcoholism and drug abuse, his alcohol use at the time of the crime would have provided evidence to support an argument to the jury to explain the nature of addiction, including alcohol addiction, and its effects on reasoning and judgment. Further, trial counsel would have been able to explain the nature of an alcoholic black out to rebut any arguments that Mann=s inability to recall such a tragic event in chronological detail was less than candid. Dr. Morton is able to explain how the effects of alcohol would have cast into doubt Mr. Mann=s ability to form the requisite intent to argue that HAC did not apply, and also to explain the nature of addiction so that the jurors= would have a scientific explanation of

Mann=s addiction and would be less inclined to view his drinking with a values laden judgment.

If trial counsel had investigated and presented the above described mitigation, there exists a reasonable probability that Mr. Mann would have received the 3 additional votes necessary for a life sentence. Initial-review post conviction counsel was ineffective for failing to raise and obtain an evidentiary hearing on this claim.

The post conviction court denied this claim finding that Martinez v. Ryan,

132 S.Ct. 1309 (2012), does not apply to state court post conviction proceedings and Mr. Mann’s claims are refuted by the record. (WARRANT PCR Vol. VII , p.

1242 -1243). While it is true that this Court has determined that while Martinez

67 provides an equitable remedy to prevent the injustice of a defendant’s claims from never being heard, it only applies to federal court proceedings, Mr. Mann respectfully argues that this Court should extend the principles of Martinez to state court proceedings. This is so, particularly where, as here, initial-review post conviction counsel had only represented Mann for 24 days prior to appearing as lead counsel in his initial 3.850 Huff hearing. Counsel had not read the record and had not investigated Mann’s case. This Court should extend the equitable principles announced in Martinez to Florida state court proceedings.

CONCLUSION AND RELIEF SOUGHT

Based on the forgoing, the lower court improperly summarily denied Mr.

Mann relief on his Successive 3.851 motion. This Court should order that his sentences be vacated and remand the case for a new trial, or for such relief as the

Court deems proper, including entering a stay of execution so that Mr. Mann can fully litigate his claims at an evidentiary hearing before the state circuit court.

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true copy of the foregoing Initial Brief of Appellant has been electronically filed with the Clerk of the Court, [email protected], and electronically delivered to Carol Dittmar, Assistant Attorney General, [email protected] and [email protected], Deborah Speer, [email protected]; Katherine Blanco, Assistant Attorney General, [email protected], Paula Montlary, [email protected]; and Candance Sabella, Assistant Attorney General [email protected]. A copy has also been furnished via U.S. Mail to Larry Mann, DOC #077663, Florida State Prison, 7819 NW 228th Street, Raiford, FL 32026 on this 25th day of March, 2013.

s/Marie-Louise Samuels Parmer Marie-Louise Samuels Parmer Florida Bar. No. 0005584 Assistant CCRC

s/Maria E. DeLiberato Maria E. DeLiberato Florida Bar No. 664251 Assistant CCRC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Dr., Suite 210 Tampa, Florida 33619 813-740-3544 813-740-3554 (Facsimile) Counsel for Petitioner

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CERTIFICATE OF COMPLIANCE

I hereby certify that a true copy of the foregoing Initial Brief of Appellant, was generated in Times New Roman 14 point font, pursuant to Fla. R. App. P.

9.100 and 9.210.

s/Marie-Louise Samuels Parmer Marie-Louise Samuels Parmer Florida Bar No. 0005584 Assistant CCRC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Dr., Suite 210 Tampa, Florida 33619 813-740-3544 813-740-3554 (Facsimile) Counsel for Petitioner

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