Execution by Jury Override - Part I: Ernest John Dobbert, Jr.
This is Part I of a new series from TFDP that will review the cases of those executed in Florida as a result of jury override. This Part discusses the case of Ernest John Dobbert, Jr.
Welcome to a new series from TFDP: Execution by Jury Override.
Introduction
Before Hurst,1 Florida allowed what is called a “jury override,” which is where the trial court imposed a sentence of death despite the jury recommending a sentence of life. According to an article published by the Florida State University Law Review in spring 1985 by Michael Mello and Ruthann Robson, Judge over Jury: Florida’s Practice of Imposing Death over Life in Capital Cases,2 as of that time, “Florida [was] one of only three states [that] allow[ed] a judge to override a jury’s recommendation of life imprisonment.” As TFDP previously covered, two people currently on Florida’s death row were sentenced to death by jury override.
As Mello and Robson further explained, as of spring 1985, Florida was “the only state that ha[d] actually executed a person despite the jury’s recommendation of a life sentence.” As of that time, Florida had executed three people sentenced to death by jury override. Consistent with Mello and Robson’s prediction, Florida continued doing so with at least one more execution in 1995. This series will review the cases of those executed as a result of jury override.
Ernest John Dobbert, Jr.
Ernest John Dobbert Jr. was executed September 7, 1984, making him the first person in the State of Florida to be executed as a result of a jury override.
Trial and Direct Appeal
After convicting Dobbert of first-degree murder of his nine-year-old daughter,3 a Duval County jury recommended by a vote of 10-2 that Dobbert be sentenced to life in prison for first-degree murder.4
Despite the jury’s recommendation, the trial court sentenced Dobbert to death. In the sentencing order, the trial judge “emphasized that in twenty-six years of defending, prosecuting, and trying criminal cases he had never known of a more heinous, atrocious, and cruel crime than this one.”5 The trial court found no mitigating circumstances and four aggravating factors:
(1) Dobbert was under sentence of imprisonment when he committed the murder for which he was convicted; (2) he knowingly created a great risk of death to many persons; (3) the murder was committed to avoid or prevent a lawful arrest; and (4) the murder was especially heinous, atrocious, and cruel.6
On direct appeal, in a decision dated July 5, 1979, the Florida Supreme Court determined that “the trial judge improperly found as aggravating circumstances that Dobbert was under sentence of imprisonment when he committed the murder and that Dobbert knowingly created a great risk of death to many persons.”7 The Court “disagree[d] with Dobbert’s contention that the trial court erred in its determination” that no mitigating circumstances existed and affirmed Dobbert’s sentence of death.8 The U.S. Supreme Court denied cert in June 1980, when Dobbert’s sentence became final.
Warrants and Habeas
“The governor signed a warrant for Dobbert's execution on June 25, 1981, and his execution was scheduled for July 22, 1981.”9 However, the U.S. Supreme Court stayed the execution pending its decision in Brown v. Wainwright.10
On January 6, 1982, the Governor signed a death warrant scheduling Dobbert’s execution for February 2, 1982.
Initial Postconviction
On January 7, 1982, Dobbert filed a postconviction motion arguing he was denied a fair trial for several reasons, including the jury override.11 After a hearing, the trial court denied his motion.12 The Florida Supreme Court unanimously affirmed the trial court’s ruling and denied a motion for stay of execution.13
Federal Habeas
On January 27, 1982, Dobbert filed a request for habeas relief in federal court .14 The federal district court denied relief on all counts but allowed Dobbert to proceed to the federal appellate court.
On February 25, 1982, the U.S. Court of Appeals granted Dobbert a stay of execution for the Court to consider the merits of his claim regarding the Supreme Court of Florida’s improper ex parte consideration of extra-record materials—a question that “ha[d] never been decided by any federal appellate court.”15
On October 19, 1983, the Eleventh Circuit issued a decision in Dobbert’s case affirming the district court’s decision denying relief. On the jury override-related issues, the Eleventh Circuit wrote:
Under the Florida statute, however, the sentencing jury's verdict is merely advisory and not binding on the trial judge. The Supreme Court's approval of Florida's capital sentencing procedure, including the provision for judge sentencing preceded by jury recommendation, defuses by implication any charge that the failure of the sentencing judge to follow the jury's recommendation is unconstitutional. Indeed, as Dobbert concedes, it is an open question whether jury participation in the penalty phase of a capital case is constitutionally required at all.16
Of course, we now know this is incorrect per Hurst.17
Further, as to Dobbert’s claim that “the procedures by which the death penalty was imposed in his case were unconstitutional” under “Tedder v. State, which holds a death sentence imposed after an advisory jury life verdict can be sustained only if supported by facts so ‘clear and convincing that no reasonable person could differ,’” the Court wrote:
When distilled, Dobbert's argument is both an extension of his position that the non-binding status of the jury's recommendation is unconstitutional per se coupled with an attack on the sufficiency of the evidence under Tedder. As to the former, this feature of the Florida capital sentencing statute is constitutional. As to the latter, we have already held . . . that the fact that there was a lack of evidentiary support for two of the four aggravating circumstances relied on by the trial court does not render petitioner's sentence constitutionally infirm. We hold hereafter that mitigating evidence was not unconstitutionally restricted. Review of the record under the Tedder standard reveals sufficient support for the ultimate conclusions of the state trial judge's detailed findings, the two opinions of the Florida Supreme Court and the United States Supreme Court's decision to defeat a constitutional attack on the death sentence as procedurally deficient.18
The U.S. Supreme Court denied cert. on July 5, 1984, with Justices Brennan and Marshall dissenting.19
Dobbert also filed a second federal habeas petition that was dismissed.20
Second Postconviction
After his federal habeas claims were denied, Dobbert filed a successive postconviction motion in state court arguing “that his conviction and sentence for the first-degree murder of his daughter were based solely on perjured testimony; that he was denied effective assistance of counsel because counsel did not adequately cross-examine John Dobbert III, Dobbert's son; and that the prosecutor used testimony which he knew or should have known was perjured.”21
After an evidentiary hearing, the trial court denied relief. On appeal, in a decision dated August 28, 1984, the Florida Supreme Court affirmed the trial court’s denial of relief.22 Justice McDonald dissented on the issue related to the credibility of Dobbert’s son’s testimony.23 Dobbert filed a petition for writ of certiorari at the U.S. Supreme Court.
Execution
Dobbert was executed by electrocution on the morning of September 7, 1984.
A news article from the day of his execution says that he was “the most hated man on Florida’s death row.” Approximately 50 people gathered outside the prison during the execution. Twenty of them “cheered and applauded” while 30 of them “gathered nearby and sang hymns.”
Dobbert was 46 at the time of his death and was pronounced dead at 10:09 a.m. At 1:30 a.m. the morning of his execution, the U.S. Supreme Court rejected his final appeal.
“He accepted his death calmly with a tight-lipped smile and made no final statement.” He “refused a final meal” and “spent his final hours with his family, including his 17-year-old daughter -- the sister of the two children he killed.”
A Note on the Trial Judge
The judge that sentenced Dobbert to death died in 2015. An article published by The Florida Times-Union following his death stated noted his involvement in Dobbert’s case:
Olliff has a place in Florida history as the only judge to ever sentence a man to death when a jury recommended life, and then see the death sentence carried out.
Ernest Dobbert had been convicted of killing his 9-year-old daughter and 7-year-old son in 1974, and the jury recommended life in prison. Olliff overruled the jury and sentenced him to death. Dobbert was executed in 1984.
Former State Attorney Harry Shorstein said the fact that death sentence survived the appellate process shows how good a judge Olliff was. All other death sentences where the jury recommended life have been overturned on appeal or not carried out.
News Articles
Michael Mello & Ruthann Robson, Judge over Jury: Florida’s Practice of Imposing Death over Life in Capital Cases, 13 Fla. St. U.L. Rev. 31, 34 (1985).
Dobbert v. State, 375 So. 2d 1069, 1070 (Fla. 1979). In addition, he was “convicted of the second-degree murder of his seven-year-old son, child torture of another son, and child abuse of another daughter.” Id.
Mello & Robson, supra note 2, at 32.
Dobbert, 375 So. 2d at 1071.
Id. at 1070.
Id.
Id. at 1071-72.
Dobbert v. State, 456 So. 2d 424, 425 (Fla. 1984).
Id.
See generally Dobbert v. State, 409 So. 2d 1053 (Fla. 1982).
Id.
Id.
Dobbert v. Strickland, 532 F. Supp. 545, 548 (M.D. Fla. 1982).
Dobbert v. Strickland, 670 F.2d 938, 940 (11th Cir. 1982).
Dobbert v. Strickland, 718 F.2d 1518, 1523 (11th Cir. 1983) (citations omitted).
Dobbert, 718 F.2d at 1523 (citations omitted)
Dobbert v. Strickland, 468 U.S. 1220 (1984).
Dobbert, 409 So. 2d at 427.
Id.
Dobbert, 456 So. 2d at 431.
Id. at 431-32 (McDonald, J., dissenting).