Filing # 73898932 E-Filed 06/21/2018 11:34:42 AM RECEIVED, 06/21/2018 11:38:26 AM, Clerk, Supreme Court

Filing # 73898932 E-Filed 06/21/2018 11:34:42 AM

IN THE SUPREME COURT STATE OF FLORIDA

CASE NO. SC18-557

JAMES MILTON DAILEY,

Appellant,

STATE OF FLORIDA,

Appellee.

BRIEF OF AMICUS CURIAE RIGHT REVEREND NEIL LEBHAR, BISHOP OF THE GULF ATLANTIC DIOCESE OF THE ANGLICAN CHURCH IN NORTH AMERICA, IN SUPPORT OF APPELLANT

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

RECEIVED, 06/21/201811:38:26 AM,Clerk,Supreme Court Miami, Florida 33131 Miami, FL. 33199 Telephone: 305.579.0500 Telephone: 305.348.3180 Facsimile: 305.579.0717 Facsimile: 305.348.4108 [email protected] [email protected]

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS CURIAE ...... 1

SUMMARY OF ARGUMENT ...... 1

ARGUMENT ...... 3

BECAUSE MR. DAILEY’S JURY DID NOT HEAR SUBSTANTIAL EXCULPATORY EVIDENCE THAT HAS NOW BEEN UNCOVERED AND DID HEAR TESTIMONY THAT HAS NOW BEEN CALLED INTO QUESTION, A NEW TRIAL IS WARRANTED TO AVOID THE UNACCEPTABLE RISK OF EXECUTING AN INNOCENT MAN...... 3

A. A Gulf Atlantic Anglican Bishop is charged with the responsibility to uphold and advocate for justice in our society and to seek relief where an injustice is perceived...... 3

B. Florida leads the nation in exonerations...... 4

C. Wrongful convictions are most often attributable to official misconduct and perjury, precisely the two issues to which the newly discovered evidence is directed in Mr. Dailey’s case...... 5

D. Review by the Court is the Ultimate Safeguard in Preventing the Execution of an Innocent Man...... 6

CONCLUSION ...... 9

CERTIFICATE OF SERVICE ...... 11

CERTIFICATE OF COMPLIANCE ...... 12

TABLE OF AUTHORITIES

Page(s)

Cases

Aguirre-Jarquin v. State, 202 So. 3d 785 (Fla. 2016) ...... 8

Ballard v. State, 923 So. 2d 475 (Fla. 2006) ...... 7

Herrera v. Collins, 506 U.S. 390 (1993) ...... 8

Schlup v. Delo, 513 U.S. 298 (1995) ...... 7

Swafford v. State, 125 So. 3d 760 (Fla. 2013) ...... 8

United States v. Garsson, 291 F. 646 (S.D.N.Y. 1923) ...... 9

White v. State, 664 So. 2d 242 (Fla. 1995) ...... 9

Other Authorities

https://deathpenaltyinfo.org/causes-wrongful-convictions ...... 5, 6

https://deathpenaltyinfo.org/innocence-and-death-penalty#nn-st ...... 4

Morse, C., Habeas Corpus and “Actual Innocence”: Herrera v. Collins, 113 S.Ct. 853 (1993), 16 Harv. J.L. & Pub. Pol’y 848 (1993) ...... 8

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus is the Rt. Rev. Neil Lebhar, Bishop of the Gulf Atlantic Diocese of

the Anglican Church in North America. The Anglican Church in North America does not have an official position on the American death penalty. But the Anglican

Church provides a framework and a forum for priests to teach Anglican doctrine, set

pastoral directions, and minister more effectively in the midst of social needs. Amicus advocates and promotes the pastoral teachings of the Anglican Church in

North America in such diverse areas of the nation’s life as the free expression of

ideas, the sacredness of human life, and the command to not harm or take a man’s life unjustly.

Based on the Anglican Catechism, Amicus shares a conviction that unjust

verdicts violate truth and justice, and that therefore the execution of innocent persons cannot be morally justified. This brief is offered in furtherance of our commitment to upholding and advocating for justice.

SUMMARY OF ARGUMENT

Anglican doctrine elucidates the Church’s commitment to advocate for justice, and to condemn false accusations, lies, the withholding of evidence, or any unjust verdict, all of which violate truth and justice and denigrate the

Commandments. Florida leads the nation in exonerations from death row. Statistics

show that the leading contributing causes to wrongful convictions are official

misconduct and perjury or false accusations. In this case, both of these causes of

wrongful convictions are at issue.

New evidence that has been discovered, suggesting improper police conduct in obtaining jail-house informants and perjury of those informants as well as the admission of the co-defendant, tends to corroborate Mr. Dailey’s insistence on his innocence. Taken together, this new evidence, when juxtaposed against the evidence that the jury did hear and this Court previously reviewed, seriously undermines confidence in the conviction and the sentence to death. A new trial is warranted so that all of the evidence can be properly examined by a jury and the possibility of an unjust verdict averted.

Review by this Court stands as the bulwark against the execution of an innocent man, as the assurance to society of the fairness of the proceedings leading up to the carrying out of a death sentence. The only thing worse than a belated exoneration, is an exoneration that is warranted but never comes. Amicus believes that there are such fundamental questions about the integrity and fairness of the proceedings in this case, that he joins Mr. Dailey in urging the Court to order a new trial. The new evidence presented gives rise to the possibility that Mr. Dailey will be executed for a crime that he did not commit, a consequence that must not be countenanced.

ARGUMENT

A. A Gulf Atlantic Anglican Bishop is charged with the responsibility to uphold and advocate for justice in our society and to seek relief where an injustice is perceived.

Amicus adheres to The Jerusalem Declaration, the founding Declaration of the

Global Fellowship of Confessing Anglicans. Provision 10 of that Declaration makes clear our “responsibility to be good stewards of God’s creation, to uphold and advocate justice in society, and to seek relief and empowerment of the poor and needy.” With this responsibility in mind, Amicus submits that the Court should permit an examination of the evidence proffered in the court below to avoid the possible execution of an innocent man.

Anglican Catechism Question 302 understands the Sixth Commandment as a demand that we acknowledge the sacredness of human life and not harm or take a man’s life unjustly. (Genesis 9:6; Leviticus 19:16; Deuteronomy 19:4-7). Question

309 of our Catechism explains the directive of the Ninth Commandment in

precluding false witness in court: “[f]alse accusation, lies, withholding evidence, or

an unjust verdict all violate truth and justice.” (Exodus 23:1).

Because there is evidence suggesting that an unjust verdict obtained in the

trial proceedings in Mr. Dailey’s case, amicus entreats the Court to consider carefully the evidence of false accusations and the withholding of evidence.

B. Florida leads the nation in exonerations.

Amicus is mindful of Florida’s history of condemning the innocent to an unjust death sentence. Florida has the both tragic and commendable distinction of having had more exonerations from death row than any other state in this country. The chart below, taken from the official website of the Death Penalty Information Center

(“DPIC”), exhibits Florida’s first place in acknowledging that innocent people end up on death row. https://deathpenaltyinfo.org/innocence-and-death-penalty#nn-st

(last visited on June 19, 2018).

As of April 30, 2018, there have been 162 exonerations from death row in 28 states:

C. Wrongful convictions are most often attributable to official misconduct and perjury, precisely the two issues to which the newly discovered evidence is directed in Mr. Dailey’s case.

Turning once again to the DPIC website, one finds that the most common causes of wrongful death penalty convictions are official misconduct and perjury or

false accusation. https://deathpenaltyinfo.org/causes-wrongful-convictions (last visited on June 19, 2018). The most recent data from the National Registry of Exonerations evinces that these two factors are the overwhelmingly prevalent causes

of unjust convictions. “As of May 31, 2017, the Registry reports that official

misconduct was a contributing factor in 571 of 836 homicide exonerations [or] 68.3%, very often in combination with perjury or false accusation, which also was a

contributing factor in 68.3% of homicide exonerations.” Id.

The 2017 Annual Report of the National Registry of Exonerations revealed that there were a record 166 exonerations in 2016, a record number of which involved police or prosecutorial misconduct. Id. Of the approximately one-third that involved wrongful homicide convictions (54), nearly a quarter (13) involved wrongful convictions that led to imposition of the death penalty, and “[e]very one of these wrongful [death penalty] exonerations involved either official misconduct or perjured testimony/false accusation, and eleven (84.6%) of them involved both.” Id.

The chart below, also from the DPIC website, graphically illustrates the significant role official misconduct or perjury and false accusation plays in death row exonerations:

https://deathpenaltyinfo.org/causes-wrongful-convictions (last visited June 19,

2018). By category, the leading contributing causes of wrongful conviction in the death-row exonerations in the last decade, between 2007 and April 2017, were:

 Official misconduct (28 cases, 82.4%)

 Perjury or false accusation (26 cases, 76.5%)

 False or misleading forensic evidence (11 cases, 32.4%)

 Inadequate legal defense (8 cases, 23.5%)

 False or fabricated confession (6 cases, 17.6%)

 Mistaken eyewitness identification (4 cases, 11.8%)

Id.

D. Review by the Court is the Ultimate Safeguard in Preventing the Execution of an Innocent Man.

This Court takes seriously its obligation to review the entire record in a capital

case to ensure that the evidence is sufficient to sustain the conviction and death

sentence. See Ballard v. State, 923 So. 2d 475, 482 (Fla. 2006). This careful review is in accordance with the Anglican Church’s proscription against taking a man’s life

unjustly. The United States Supreme Court has also underscored the importance in

ensuring the propriety of a criminal conviction, particularly where a death sentence is at issue:

The quintessential miscarriage of justice is the execution of a person who is entirely innocent. Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. Schlup v. Delo, 513 U.S. 298, 324–25 (1995). Amicus understands that this Court has upheld the judgment and death sentence when conducting its appellate review of this case. But unlike the Court’s concern in direct-review cases, the remedy sought in this case is not an acquittal. Mr. Dailey seeks only to have the opportunity to have his case competently and fully presented to a new jury.

The record below establishes that this is one of the rare cases on post- conviction review in which a claim of innocence is firmly and rightly asserted. See

Schlup, 513 U.S. at 321-22 (noting that Judge Friendly's observation a quarter of a century ago that “the one thing almost never suggested on collateral attack is that the prisoner was innocent of the crime” remains largely true today) (quoting 37 Friendly,

Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 145 (1970)). Here, exactly as was the case in Swafford v. State, 125 So. 3d 760

(Fla. 2013), the post-conviction proceedings have demonstrated that there is newly

discovered exculpatory evidence that was never heard by Mr. Dailey’s jury and never considered by this Court. When the new evidence is juxtaposed against that

which the jury heard, confidence in the conviction and sentence of death is seriously

undermined, and the submission of the case to a new jury is warranted. As this Court

unanimously held in a more recent capital post-conviction case:

While a second jury may ultimately resolve these (and other) conflicts in the evidence against Aguirre, they do not change the fact that the newly discovered evidence gives rise to a reasonable doubt as to his culpability. Accordingly, Aguirre is entitled to a new trial. See Marek[v. State], 14 So. 3d [985, 990 (Fla. 2009)](“Newly discovered evidence satisfies the second prong of the Jones II test if it ‘weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.’” (quoting Jones [v. State], 678 So. 2d [309, 315 (Fla. 1996)]). Aguirre-Jarquin v. State, 202 So. 3d 785, 795 (Fla. 2016). Although Amicus takes no position on the validity of the death penalty, he

agrees with Justice Blackmun’s opinion, joined by Justices Stevens and Souter, that

“[n]othing could be more contrary to contemporary standards of decency, or more

shocking to the conscience, than to execute a person who is actually innocent.”

Herrera v. Collins, 506 U.S. 390, 430 (1993) (Blackmun, J., dissenting) (citations

omitted). See generally Morse, C., Habeas Corpus and “Actual Innocence”:

Herrera v. Collins, 113 S.Ct. 853 (1993), 16 Harv. J.L. & Pub. Pol’y 848 (1993).

Indeed, the only thing worse than an exoneration of an innocent man or woman that

comes years after the conviction, is a deserved exoneration that never comes. As Judge Learned Hand warned, “[O]ur procedure has been always haunted by the

ghost of the innocent man convicted.” United States v. Garsson, 291 F. 646, 649

(S.D.N.Y. 1923). This Court stands as a bulwark against this injustice. “The thoroughness and

quality of this Court’s review is relied upon by our society as an important safeguard

for preventing executions where a serious question remains as to the fairness of the

proceedings leading up to the imposition of the death penalty.” White v. State, 664

So. 2d 242, 245 (Fla. 1995) (Anstead, J., dissenting). Amicus believes that there is

such a question about the fundamental fairness and integrity of the proceedings in this case. Accordingly, Amicus urges the Court to reverse Mr. Dailey’s conviction

and sentence for a new trial, so that a jury can consider all of the evidence now

uncovered and return a verdict that speaks the truth, and so that this Court can avert the substantial risk of executing an innocent man.

CONCLUSION

Based upon the foregoing, Amicus joins Mr. Dailey in requesting that the

Court reverse the order of the lower court and remand this cause for a new trial.

Respectfully submitted,

Elliot H. Scherker Karen M. Gottlieb Florida Bar No. 202304 Florida Bar No. 0199303 Greenberg Traurig, P.A. Florida Center for Capital Wells Fargo Center, Suite 4400 Representation at FIU College of Law 333 Southeast Second Avenue 11200 S.W. 8th Street RDB 1010 Miami, Florida 33131 Miami, FL. 33199 Telephone: 305.579.0500 Telephone: 305.348.3180 Facsimile: 305.579.0717 Facsimile: 305.348.4108 [email protected] [email protected]

By: /s/ Karen M. Gottlieb Karen M. Gottlieb

Counsel for Amicus Curiae

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on June 21, 2018, a copy of the foregoing brief

was electronically filed with this Court and served via registered e-mail on the counsel listed below:

Christina Z. Pacheco, AAG Laura Fernandez Office of the Attorney General Connecticut Bar No. 436110 Concourse Center 4 127 Wall Street 3507 E. Frontage Road, Suite 200 New Haven, Connecticut 06511 Tampa, Florida 33607 [email protected] [email protected] [email protected]

Chelsea R. Shirley Maria E. DeLiberato Cyd Oppenheimer Julissa R. Fontan 155 West Rock Avenue Office of Capital Collateral New Haven, CT 06515 Regional Counsel for the Middle Dist. [email protected] 12973 N. Telecom Parkway Temple Terrace, Florida 33637 [email protected] [email protected] [email protected]

Seth E. Miller Innocence Project of Florida, Inc. 1100 E. Park Avenue Tallahassee, Florida 32301 [email protected]

By: /s/ Karen M. Gottlieb Karen M. Gottlieb

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Times New Roman, 14-point

font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

By: /s/ Karen M. Gottlieb Karen M. Gottlieb