The history of Rule 3.811
This post has the history of Florida Rule of Criminal Procedure 3.811 and the first three times it was used.
In light of the litigation surrounding Owen’s competency for execution (the latest here), I decided to dig in a bit more into the history of litigation surrounding whether prisoners were insane to be executed. This post has the history of Rule 3.811 and the first three times it was used. (An explanation of the Rule 3.811 process is here.)
History of Rule 3.811
As I covered in a prior post, the procedure for litigating whether a prisoner is insane to be executed is outlined in Florida Rule of Criminal Procedure 3.811 and section 922.07, Florida Statutes. While section 922.07 has existed for longer, Rule 3.811 was created in 1986 in reaction to a decision by the U.S. Supreme Court.
Ford v. Wainwright (1986)
Alvin Bernard Ford was sentenced to death in 1974 in his early 20s. There was no question whether he was incompetent at the time of the crime of at trial.
“In early 1982,” while awaiting execution on death row, “Ford began to manifest gradual changes in behavior.”1 He began developing delusions, and his attorney asked a psychiatrist who had previously examined him “to continue seeing him and to recommend appropriate treatment.”
On the basis of roughly 14 months of evaluation, taped conversations between Ford and his attorneys, letters written by Ford, interviews with Ford's acquaintances, and various medical records, Dr. Amin concluded in 1983 that Ford suffered from “a severe, uncontrollable, mental disease which closely resembles ‘Paranoid Schizophrenia With Suicide Potential’ ”—a “major mental disorder . . . severe enough to substantially affect Mr. Ford's present ability to assist in the defense of his life.”
When Ford then refused to continue seeing Dr. Amin, Ford’s counsel sought the assistance of another doctor.
Dr. Kaufman concluded that Ford had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and indeed sincerely believed that he would not be executed because he owned the prisons and could control the Governor through mind waves. Dr. Kaufman found that there was “no reasonable possibility that Mr. Ford was dissembling, malingering or otherwise putting on a performance . . . .” The following month, in an interview with his attorneys, Ford regressed further into nearly complete incomprehensibility, speaking only in a code characterized by intermittent use of the word “one,” making statements such as “Hands one, face one. Mafia one. God one, father one, Pope one. Pope one. Leader one.”
(Citations omitted.)
Ford’s attorneys invoked section 922.07, and the governor appointed a panel to examine Ford. (At that time, no death warrant had been signed.)
At a single meeting, the three psychiatrists together interviewed Ford for approximately 30 minutes. Each doctor then filed a separate two- or three-page report with the Governor . . . . One doctor concluded that Ford suffered from “psychosis with paranoia” but had “enough cognitive functioning to understand the nature and the effects of the death penalty, and why it is to be imposed on him.” Another found that, although Ford was “psychotic,” he did “know fully what can happen to him.” The third concluded that Ford had a “severe adaptational disorder,” but did “comprehend his total situation including being sentenced to death, and all of the implications of that penalty.” He believed that Ford's disorder, “although severe, seem[ed] contrived and recently learned.” Thus, the interview produced three different diagnoses, but accord on the question of sanity as defined by state law.
(Citations omitted.) On April 30, 1984, then-Governor Bob Graham announced his determination that Ford was sane to be executed by, “without explanation or statement,” signing a death warrant for Ford’s execution. “Ford's attorneys unsuccessfully sought a hearing in state court to determine anew Ford's competency to suffer execution.” Ford’s attorneys then sought relief in the federal district court, which denied counsel’s petition for an evidentiary hearing.
On appeal, the U.S. Circuit Court of Appeals for the Eleventh Circuit “granted a certificate of probable cause and stayed Ford's execution.” According to an article by the Tampa Bay Times (sent by a reader), the stay came “14 hours before Ford was to die.” The U.S. Supreme Court “rejected the State’s effort to vacate the stay of execution.”
On the merits, “a divided panel” of the Eleventh Circuit affirmed the district court’s denial. The U.S. Supreme Court granted Ford’s petition for writ of certiorari. On April 22, 1986, the Court held in Ford v. Wainwright, that Florida’s “procedures for determining sanity” were inadequate and that Ford was entitled to an evidentiary hearing:
Today we have explicitly recognized in our law a principle that has long resided there. It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications. In light of the clear need for trustworthiness in any factual finding that will prevent or permit the carrying out of an execution, we hold that Fla. Stat. § 922.07 (1985 and Supp.1986) provides inadequate assurances of accuracy to satisfy the requirements of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Having been denied a factfinding procedure “adequate to afford a full and fair hearing” on the critical issue, 28 U.S.C. § 2254(d)(2), petitioner is entitled to an evidentiary hearing in the District Court, de novo, on the question of his competence to be executed.
According to the Tampa Bay Times, “U.S. District Judge Norman Roettger ruled in 1989 that Ford was sane.” While Ford’s attorneys’ appeal from that ruling was pending, Ford died in 1991. According to the Tampa Bay Times, “Ford, 37, died at Shands Hospital in Gainesville on Feb. 28, two days after he was found unconscious in his death row cell at Florida State Prison near Starke, state corrections spokesman Bob Macmaster said Friday.”
As I previously explained, the last two times the Rule 3.811 procedure for determining whether a prisoner is insane to be executed was related to Marshall Gore in 2013 and John Ferguson in 2012.
There were no insanity-related executive orders issued in 2011.
Nollie Martin (1987)
Nollie Martin was sentenced to death for crimes that occurred in 1977. “His defense at trial was insanity.” Regarding evidence at trial, the Florida Supreme Court wrote in 1982:
At the sentencing hearing he sought the benefit of the mental mitigating factors of being under the influence of extreme mental and emotional disturbance and that his capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired. He had numerous psychiatric examinations, and conflicting opinions ensued from the doctors examining him. One considered him insane at the time of the murder, but three opined otherwise. At sentencing two felt that he met the statutory mental mitigating circumstances. The reconciliation of these conflicts was the responsibility of the jury and, to the extent it concerned his sentencing responsibilities, the trial judge.2
On direct appeal, the Florida Supreme Court unanimously affirmed Martin’s sentences of death, which became final in 1983.
In 1984, then-Governor Bob Graham signed a warrant for Martin’s execution.3
Martin filed a motion for postconviction relief claiming that a certain psychologist should have been appointed for the defense at his trial and that the death penalty is imposed in an arbitrary and discriminatory manner. The trial court denied the motion without an evidentiary hearing and [the Florida Supreme] Court affirmed. A federal district court then denied Martin's habeas corpus petition. The federal circuit court stayed Martin's execution, but, after considering his case, affirmed the district court's denial of relief.
(Citation omitted.) In 1986, Gov. Graham signed another warrant for Martin’s execution. Martin filed a petition for writ of habeas corpus with the Florida Supreme Court claiming he was incompetent for execution. In response to Martin’s petition, the Court “adopted an emergency rule of criminal procedure pertaining to competency to be executed.” And so Rule 3.811 was created.
Gov. Graham then stayed Martin’s execution.
On August 3, 1987 Governor Martinez signed an executive order appointing three psychiatrists to examine Martin pursuant to section 922.07 on September 29, 1987. On September 24, 1987 Martin filed a petition to stay the examination, which [the Florida Supreme Court denied in an unreported order. Martin's counsel then refused to let Martin be examined by the psychiatrists and threatened them with a lawsuit if they proceeded with an examination of Martin's competency to be executed. After receiving the psychiatrists' letter outlining these facts and reporting their inability to conduct the requested examination, the governor signed Martin's third death warrant.
Martin’s counsel then filed a motion in the trial court for determination of competency to be executed challenging the procedure set forth in Rule 3.811 and section 922.07. While that motion was pending, Martin filed a petition for writ of habeas corpus with the Florida Supreme Court requesting to be resentenced.
Upon review, in an opinion dated October 28, 1987, the Florida Supreme Court, concluded:
In their letter the psychiatrists appointed by the governor indicated their readiness to examine Martin when the legal questions are resolved. We therefore request that the governor again ask them to do so. Recognizing that Martin's warrant is effective until November 11, but that his execution has been set for November 5, 1987, we direct that he shall not be executed on that date or anytime during the warrant period unless the procedures in regard to his competency to be executed have been concluded.
Following that decision, the governor “reappointed a panel of three psychiatrists to examine Martin,” and the commission “determined that Martin understood the nature of the death penalty and why it is to be imposed on him.”4
The governor determined Martin was competent for execution, and Martin sought review in the trial court. After reviewing “written submissions from psychiatric experts on both sides, hear[ing] arguments from both sides, [and] call[ing] for questioning of one of the psychiatrists appointed by the governor,” the trial court determined Martin was competent for execution.
On review, the Florida Supreme Court affirmed the trial court’s order and commented that the standard for competency for execution is “a narrower determination than what is required for competency to stand trial.” Further, “[t]he fact that Martin believes that a satanic conspiracy resulted in his conviction does not override his understanding of why he is being executed.” Thus, the Court dissolved the stay of execution.
Martin then filed a petition for writ of habeas corpus in federal court, raising three claims that were related to his claim of insanity. The federal court stayed Martin’s execution.5 After an evidentiary hearing, the federal district court denied relief. On appeal, in a decision dated December 14, 1989, the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court’s denial.
In 1992, then-Governor Lawton Chiles signed Martin’s fourth death warrant. After further litigation unrelated to the issue of insanity, the Florida Supreme Court denied relief—as did the U.S. Supreme Court.6
Nollie Martin was executed May 12, 1992.
The next two to invoke Rule 3.811
The next two prisoners to invoke Rule 3.811 were Pedro Medina in 1997 and Thomas Provenzano in 1999.
Pedro Medina (1997)
Pedro Medina was sentenced to death in 1983 for crimes that occurred in 1982. He was sentenced to death after the jury voted 10-2 for death. His sentence became final in 1985.
On October 30, 1996, then-Governor Chiles signed a warrant scheduling Medina execution for December 5, 1996. Three days before the scheduled execution, “Medina's counsel wrote a letter to the Governor” invoking section 922.07 and “asking for a stay of execution in light of a mental health expert's assessment that Medina was not competent to be executed.”7
Pursuant to the statute, Gov. Chiles temporarily stayed the execution and appointed a commission of three psychiatrists to examine Medina. After its examination, the commission “forwarded its findings in a report to the Governor on December 10, 1996. The report state[d] that the commission unanimously determined “that Mr. Medina understands the nature and effect of the death penalty and why it has been imposed upon him.” As a result, Gov. Chiles lifted the stay of execution on January 6, 1997 and rescheduled Medina's execution for the week beginning January 27, 1997, and ending February 3, 1997.
Per the procedure, the matter then went to the trial court. In an order dated January 16, 1997, the trial court entered an order determining:
Based upon the totality of the Motion and all submissions, this Court finds that there are no reasonable grounds to believe that Defendant is insane to be executed.
On January 21, 1997, Medina filed a motion for reconsideration, which the trial court denied on January 23. On January 24, Medina filed an appeal with the Florida Supreme Court of that order and others entered by the trial court. The Florida Supreme Court held oral argument on January 27.
The Florida Supreme Court further stayed Medina’s execution and remanded for the trial court to hold an evidentiary hearing on Medina’s competency for execution. Per the Court’s ruling, the trial court was required “to hold the hearing . . . and to enter an order . . . no later than twenty-one days from the date” of the Court’s opinion.
Upon remand, the circuit court appointed two mental health experts to examine Medina pursuant to rule 3.812(c)(2). After evaluating Medina, the experts submitted written findings on February 21, 1997, concluding that Medina has the mental capacity to understand the fact of the pending execution and the reason for it.8
The trial court held an evidentiary hearing on February 24, where several witnesses testified. On March 3, the trial court “entered an extensive order” concluding:
It is uncontroverted that Defendant has displayed bizarre behavior over the past few weeks, months, and even years. It is important to remember, though, that some of his behavior is not unusual behavior for inmates to engage in. Additionally, it can probably be said that Defendant suffers from some form of mental pathology or mental illness. However, this Court is not charged with the duty of determining precisely what, if any, mental pathologies or infirmities Defendant suffers from. Rather, the issue is whether counsel for Defendant has established by clear and convincing evidence that Defendant lacks the mental capacity to understand the fact of the pending execution and the reason for it.
The court held that Medina was competent to be executed. On appeal, the Supreme Court of Florida affirmed the trial court’s determination.
Pedro Medina was executed March 25, 1997. His execution was one of the worst botched executions by electrocution in history.9
Thomas Provenzano (1999)
In 1999, Thomas Provenzano invoked the Rule 3.811 process while under a death warrant for an execution scheduled July 7, 1999. He did so during the week of his scheduled execution. The circuit court denied his motion after the then-Governor Jeb Bush’s determination he was competent for execution, and he appealed to the Florida Supreme Court.
On appeal, “to give th[e] matter full consideration, th[e] Court entered a stay of execution” for approximately two months—until September 14, 1999.10 Upon review, the Court determined that “the evidence presented by Provenzano, which consisted of an expert report and other corroborating evidence of Provenzano's bizarre behavior, when taken alone, establishe[d] reasonable grounds to believe that Provenzano is incompetent to be executed.” As a result, the Court remanded for an evidentiary hearing. The Court also “urge[d] the Legislature to consider establishing a timetable as to when a claim must be filed under section 922.07 in those chases where there is knowledge that such a claim exists.”
On remand, there were some procedural issues related to the timing of the evidentiary hearing. On appeal, the Florida Supreme Court again remanded to the circuit court for further proceedings and further stayed Provenzano’s execution, which had been reset for September 24, 1999.11
After further proceedings in the trial court, “[t]he circuit court . . . concluded that Provenzano suffers from mental illness, but because he also exaggerates symptoms and utilizes deception, it is difficult to determine Provenzano's exact mental status.”12 The court further concluded that "Provenzano did “not lack the mental capacity to understand the fact of his pending execution and the reason for it.” On review, the Florida Supreme Court affirmed the circuit court’s finding that Provenzano was competent to be executed.
Provenzano was executed June 21, 2000.
Ford v. Wainwright, 477 U.S. 399, 402 (1986).
Martin v. State, 420 So. 2d 583, 584 (Fla. 1982) (footnotes omitted).
Martin v. Dugger, 515 So. 2d 185, 186 (Fla. 1987).
Martin v. State, 515 So. 2d 189, 189 (Fla. 1987).
Martin v. Dugger, 891 F.2d 807 (11th Cir. 1989).
Martin v. Singletary, 599 So. 2d 119 (Fla. 1992).
Medina v. State, 690 So. 2d 1241, 1244 (Fla. 1997).
Medina v. State, 690 So. 2d 1255, 1255 (Fla. 1997).
News articles about Medina’s execution: Washington Post & New York Times
Provenzano v. State, 751 So. 2d 37 (Fla. 1999).
Provenzano v. State, 750 So. 2d 597 (Fla. 1999).
Provenzano v. State, 760 So. 2d 137, 140 (Fla. 2000).