Barnes Warrant: Scheduling Order does not reflect longer warrant period.
Despite the 42-day warrant period, the Florida Supreme Court's Scheduling Order in Barnes's case closely tracks the Court's scheduling orders issued for prior executions this year.
If you learn anything from reading TFDP, I hope it is a better understanding of what the death warrant process requires of so many people. In large part, that is the unimaginable pressure of litigating and rendering decisions on issues of life-and-death under immense time pressure. As the Florida Supreme Court explained a few months ago, death warrant litigation is “arduous.”
On Thursday, June 22, Gov. DeSantis issued a warrant scheduling the execution of James Barnes for August 3 at 6:00 p.m. As I explained when the warrant was issued, the summer warrant period poses unique challenges for various reasons. While warrant periods have hovered around 30 days since executions resumed in Florida in 2017 after Hurst, the warrant period is a bit longer this time at 42 days.
NOTE: The warrant period is the time between the warrant being issued and the scheduled execution, during which time the condemned must raise and litigate any final claims. The warrant period is set by the Governor when he signed the warrant and scheduled the execution. As the Owen warrant litigation showed, some execution-related claims cannot be raised and litigated until a warrant is issued—meaning the first time the condemned can raise and litigate those claims is during the warrant period.
Here are the warrant periods for the five death warrants issued this year:
Donald Dillbeck: 31 days
Louis Gaskin: 30 days
Darryl Barwick: 29 days
Duane Owen: 37 days
James Barnes: 42 days
Three of the five warrant periods encompassed at least one recognized holiday. The Gaskin warrant included Easter. The Owen warrant included Memorial Day. The Barnes warrant now encompasses July 4.
Once the Governor issues a death warrant, the Florida Supreme Court issues a scheduling order directing the timeline of warrant- and execution-related litigation, including (a) when proceedings in the trial court must be completed, (b) when litigation at the Florida Supreme Court must be initiated, and (c) when briefing at the Florida Supreme Court must be filed. The Court’s Scheduling Order does not indicate when its decision will be released.
NOTE: After proceedings are completed at the Florida Supreme Court, the condemned still has the opportunity to seek review at the U.S. Supreme Court. Unless a stay is granted, litigation on those claims must be completed between the Florida Supreme Court’s decision and the date of execution.
Because the Governor gave Barnes a longer warrant period, the Court had additional time to work with in setting the scheduling order for the proceedings in Florida state court. However, the Scheduling Order issued Thursday afternoon follows the same pattern as the others.
The total number of days from the warrant being issued to the Reply Brief deadline in the Florida Supreme Court for each of the five warrants is as follows:
Dillbeck: 22 days
Gaskin: 18 days
Barwick: 17 days
Owen: 21 days
Barnes: 22 days
In other words, the Florida Supreme Court did not give the parties or the trial court any additional time as a result of the longer warrant period. Instead, assuming no stay is granted, either (a) the Florida Supreme Court will have longer to issue its decision after briefing closes, (b) the U.S. Supreme Court will have longer to review any claims Barnes files after the Florida Supreme Court’s decision, or (c) Barnes will have longer to wait between final disposition of his claims and the execution.
The chart below illustrates the allocation of time in each of the warrant periods so far this year.
*Note that this chart does not reflect the time between the close of the trial court proceedings and the deadline for any Notice of Appeal.
**The timeframes used for Owen are from the Florida Supreme Court’s initial Scheduling Order. The Court’s Scheduling Order on Owen’s 3.811 claims was issued well into the warrant period and, therefore, would not be a fair comparison to the others.
My thoughts are with everyone involved in the warrant and execution process.
The long arc of death penalty litigation is getting more ominous every year in certain states. FL now can competently use 8 of 12 jurors to condemn to death? Surely you jest!