Warrant Litigation: The primary issue is Owen's competence for execution.
Owen's counsel argued at the trial court that the primary issue is Owen's competence. The case now goes to the Supreme Court of Florida - and maybe the Governor in a procedure not used since 2013.
As the last post explained, the trial court issued several orders on Friday addressing the several motions filed by Duane Owen’s defense team seeking relief from his execution scheduled June 15, 2023.1 The documents are still not publicly available on the trial court docket, and no Notice of Appeal has been docketed at the Florida Supreme Court (as of 9:45 p.m. Saturday night). Per the Florida Supreme Court’s Scheduling Order, the Notice of Appeal must be filed by 9:00 a.m. Monday morning.2
Trial Court’s Order
A news report posted Friday contains footage from the case management conference (CMC) held on Thursday afternoon and a copy of the Court’s Order denying Owen’s motion for stay of execution.
The trial court determined there is no need for an evidentiary hearing and told the parties it would issue written rulings on Owen’s four pending motions without holding an evidentiary hearing. The trial court also referenced the expedited nature of the proceedings a few times. The judge said he was ready to issue a ruling but allowed counsel to present argument if desired.
Counsel for Owen explained that the primary issue presented is Owen’s competency to be executed, which will affect the outcome of Owen’s other claims. Counsel for Owen explained that Owen has delusions and other mental illness that make it difficult for his attorneys to effectively communicate with him about his case.
The trial court’s Order denying Owen’s motion to stay execution suggested that Owen has requested relief from the execution under Florida Rule of Criminal Procedure 3.811, which provides:3
A person under sentence of death shall not be executed while insane to be executed.
Rule 3.811(b) defines insanity as:
A person under sentence of death is insane for purposes of execution if the person lacks the mental capacity to understand the fact of the impending execution and the reason for it.
In its Order, the trial court determined that any request to stay the execution based on competency under Florida Rule of Criminal Procedure 3.811 is premature. Specifically, the court explained that the Governor must first make a determination on Owen’s competency before the issue can be presented to the circuit court. The court further determined that the motion is not properly filed in Palm Beach County and should, instead, be filed in “the Circuit in which the execution is to take place.”
As to Owen’s other motions, the Order suggests that the Court determined Owen’s claims presented in his fourth successive motion for postconviction relief are procedurally barred.
Rule 3.811 Procedure
Rule 3.811 provides a procedure for determining insanity to be executed. Per the Rule, no court can “entertain[]” a motion for stay of execution “based on grounds of the prisoner’s insanity to be executed . . . until such time as the Governor of Florida shall have held appropriate proceedings for determining the issue pursuant to the appropriate Florida Statutes.”
Governor’s Determination
Section 922.07, Florida Statutes, provides the procedure for the Governor’s determination. The first step, per the statute, is for the Governor to stay the execution and “appoint a commission of three psychiatrists to examine the convicted person.” Further:
The Governor shall notify the psychiatrists in writing that they are to examine the convicted person to determine whether he or she understands the nature and effect of the death penalty and why it is to be imposed upon him or her. The examination of the convicted person shall take place with all three psychiatrists present at the same time. Counsel for the convicted person and the state attorney may be present at the examination.
After receiving the Commission’s report, “if the Governor decides that the convicted person has the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him or her, the Governor shall immediately lift the stay and notify the Attorney General of such action.” If, instead, “the Governor decides that the convicted person does not have the mental capacity to understand the nature of the death penalty and why it was imposed on him or her, the Governor shall have the convicted person committed to a Department of Corrections mental health treatment facility.”
Circuit Court Review
Once the Governor makes a determination that the prisoner is not insane to be executed, “counsel for the prisoner may move for a stay of execution and a hearing based on the prisoner’s insanity to be executed.” The Rule directs that “[t]he motion shall be filed in the circuit court of the circuit in which the execution is to take place . . . .”
If the circuit court judge, after reviewing the motion and supporting evidence, “has reasonable grounds to believe that the prisoner is insane to be executed, the judge shall grant a stay of execution and may order further proceedings which may include a hearing pursuant to rule 3.812.” Rule 3.812 provides the procedure for a hearing on the prisoner’s insanity, at which the circuit court reviews the issue “de novo,” or “from the beginning.”4
Marshall Gore (2013)
The last time this procedure was used was in 2013 for Marshall Gore. Gore’s execution was scheduled for June 24, 2013, at 6:00 p.m. On May 22, 2013, then-Governor Rick Scott, per section 922.07, issued an Executive Order appointing a commission to review Gore’s competency and temporarily stayed Gore’s execution:
On May 30, 2013, after the Commission’s examination of Gore, Governor Scott issued another Executive Order determining the execution could proceed and dissolving the stay:
Litigation then proceeded in state court, which resulted in the execution being stayed. On August 13, 2013, the Florida Supreme Court issued a decision affirming the trial court’s decision that competent, substantial evidence existed to support the circuit court’s determination that Gore was competent to be executed. The U.S. Supreme Court denied cert on October 1, 2013, and Gore was executed that day.
John Ferguson (2012)
This procedure was also used related to the execution of John Errol Ferguson. Ferguson was under a death warrant that scheduled his execution for October 16, 2012. In an Executive Order dated September 26, 2012, then-Governor Rick Scott, per section 922.07, appointed a commission to review Ferguson’s competency and temporarily stayed Ferguson’s execution:
Six days later, in an Executive Order dated October 2, 2012, Governor Rick Scott determined Ferguson was not insane to be executed and lifted the stay of execution:
Litigation on Ferguson’s competency (and other issues) proceeded in both state and federal courts. The Florida Supreme Court granted a stay of execution to October 18 and issued a decision denying Ferguson’s claims on October 17, 2012, the day after the originally scheduled execution. Ultimately, the Florida Supreme Court determined that “there [was] competent, substantial evidence to support the circuit court's determination that Ferguson [was] sane to be executed.” That decision explains how the state court litigation unfolded.
Per an article posted by the University of Miami Law Review discussing Ferguson’s case, the U.S. Court of Appeals for the Eleventh Circuit issued a last-minute stay after Ferguson had eaten his last meal on October 23. Per the Eleventh Circuit’s 2013 decision, the federal trial court issued an order “less than an hour before Ferguson's scheduled execution on October 23, 2012,” in which the court summarily denied Ferguson’s habeas petition but granted “Ferguson a certificate of appealability (COA).” The Eleventh Circuit then issued a stay.
After hearing oral argument on November 29, 2012, the Eleventh Circuit issued a decision on May 21, 2013, in which it denied Ferguson relief, explaining that it was restricted by the confines of federal habeas law.
John Ferguson was executed on August 5, 2013.
Based on all of this, we are likely to see a Notice of Appeal at the Florida Supreme Court Monday morning related to the trial court’s denial of Owen’s fourth successive motion for postconviction relief—as we have seen in the three prior execution cases. In addition, we are likely to see litigation related to Owen’s competency that would involve Governor DeSantis’s office per the Florida Rules of Criminal Procedure and Florida Statutes.
My thoughts are with everyone involved in the warrant and execution process.
This is the definition of “de novo” from the Cornell Legal Information Institute.
This post has been updated since it was originally posted to correct that the last time this process was used was for the execution of Marshall Gore.