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

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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, v. 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 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 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 i 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 ii 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. 1 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. 2 ARGUMENT 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. 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. 3 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: 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. 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
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