Reply Brief — Louis Gaskin, Petitioner v. Florida

No.22-7236

IN THE SUPREME COURT OF THE UNITED STATES

_________________________

LOUIS B. GASKIN,

PETITIONER,

VS.

STATE OF FLORIDA,

RESPONDENT.

________________________________

____________________________________________________________

On Petition for a Writ of Certiorari to the Supreme Court of Florida

____________________________________________________________

REPLY TO BRIEF IN OPPOSITION TO CERTIORARI

____________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

WEDNESDAY, APRIL 12, 2023, AT 6:00 PM

____________________________________________________________

Eric C. Pinkard*

Florida Bar No. 651443

Law Office of the Capital Collateral Regional

Counsel – Middle Region

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

Phone No. (813)558-1600 Ext. 603

Fax No. (813) 558-1601

Email: Pinkard@ccmr.state.fl.us

*COUNSEL OF RECORD

TABLE OF CONTENTS

TABLE OF CONTENTS …………………………….………………………………………..i

TABLE OF AUTHORITIES…………………………………….……………………………ii

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT…………...………1

ARGUMENT I ………………………………………………………………………………….2

ARGUMENT II ………………………………………………………………………………...6

ARGUMENT III ……………………………………………………………………………...12

ARGUMENT IV ………………………………………………………………………………14

CONCLUSION ……………………………………………………………………...………..17

i

TABLE OF AUTHORITIES

Cases

Asay v. State,

210 So. 3d 1 (Fla. 2016) ……………………………………………………………….9

Atkins v. Virginia,

536 U.S. 304 (2002) ……………………………………………………………...…3, 4

Bush v. State,

295 So. 3d 179 (Fla. 2020) ……………………………………………………..……14

Caldwell v. Mississippi,

472 U.S. 320 (1985) ……………………………………………………………………8

Dep’t of Agriculture v. Moreno,

413 U.S. 528 (1973) …………………………………………………………..….10, 11

Dillbeck v. State,

2023 WL 2027567 (Fla. Feb. 16, 2023) ……………………………………..…….12

Eisenstadt v. Baird,

405 U.S. 438 (1972) ……………………………………...…………………………..10

.

Espinosa v. Florida,

505 U.S. 1079 (1992) …………………………………………………………….13, 15

Furman v. Georgia,

408 U.S. 238 (1972) ……………………………………………………….…………..8

Gaskin v. State,

218 So. 3d 399 (Fla. 2017) ……………………………………………………………9

Hall v. Florida,

571 U.S. 701 (2014) ……………………………………………………..……..3, 4, 14

Hurst v. Florida,

577 U.S. 92 (2016) ………………………………………………………………….8, 9

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ……………………………………………………………14

ii

Kennedy v. Louisiana,

554 U.S. 407 (2008) ………………………………………………………………….10

Lawrence v. State,

308 So. 3d 544 (Fla. 2020) ………………………………………………………… 14

Lockett v. Ohio,

438 U.S. 586 (1978) ………………………………………………………………….10

McLaughlin v. Florida,

379 U.S. 184 (1964) ………………………………………………………………… 10

Mosley v. State,

209 So. 3d 1248 (Fla. 2016) …………………………………………………..………9

Penry v. Lynaugh,

492 U.S. 302 (1989) ………………………………………………………..……….3, 4

Perry v. State,

210 So. 3d 630 (Fla. 2020) …………………………………………………………..11

Phillips v. State,

299 So. 3d 1013 (Fla. 2020) ……………………………………………………..….14

Poole v. State,

297 So. 3d 487 (Fla. 2020) …………………………………………………..………12

Ramos v. Louisiana,

140 S. Ct. (2020) ……………………………………………………………………….7

Ring v. Arizona,

536 U.S. 584 (2002) ……………………………………………………………………9

Roper v. Simmons,

543 U.S. 551 (2005) ……………………………………………….…………..……3, 4

Skinner v. Oklahoma,

316 U.S. 535 (1942) ………………………………………………………….………10

Spaziano v. Florida,

468 U.S. 447 (1984) ………………………………………………………...………6, 7

Stanford v. Kentucky,

492 U.S. 361 (1989) ………………………………………………………………..3, 4

iii

State v. McBride,

848 So. 2d 287 (Fla. 2003) ……………………………………………………………5

State v. Owen,

696 So. 2d 715 (Fla. 1997) ……………………………………………………………6

State v. Poole,

297 So. 3d 487 (Fla. 2020) ………………………………………………….……….14

Sullivan v. Louisiana,

508 U.S. 275 (1983) ……………………………………………………………………8

U.S. v. Lopez,

581 F.2d 1338 (9th Cir. 1978) ………………………………………….…………..11

Weems v. United States,

217 U.S. 349 (1910) …………………………………………………….………..……3

Wright v. State,

312 So. 3d 59 (Fla. 2021) …………………………………………..…………………9

Statutes

Fla. Stat., § 921.141 …………………………………………………………………..……..12

iv

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT

The State accuses Mr. Gaskin of seeking to “deprive his victims of justice” by

seeking certiorari. This fallacious accusation unfairly misrepresents Mr. Gaskin’s

plight and attempts to villainize him for exercising his rights under the United States

Constitution. While the State complains that the questions presented in the petition

either should have been asked, or were asked, long ago, it remains Mr. Gaskin’s

position that in situations where the Eighth Amendment prohibition against cruel

and unusual punishment are at issue, no claim should ever be barred based on

waiver, foreclosure, or any other procedural reason. When the State determines that

it is appropriate to take a life, a procedural bar should not be an impediment to the

one who seeks to defend his life.

1

ARGUMENT I

The State refutes Mr. Gaskin’s first argument with the standard argument

that trial counsel made a reasonable strategic decision to limit mitigation, and that

the claims are barred and without merit.

The State claims that Mr. Gaskin’s claim is an ineffective assistance of counsel

claim in disguise and is therefore procedurally barred. In an attempt to deny Mr.

Gaskin his rights under the Eighth and Fourteenth Amendments, the State

misapprehends and twists Mr. Gaskin’s argument.

Like the State, the FSC essentially treated this as a successive ineffective

assistance of counsel claim and never engaged with Mr. Gaskin’s Eighth Amendment

arguments. The extent of the court’s engagement on the larger issues was: “Gaskin

concedes in his initial brief that this issue is procedurally barred but argues that

constitutional infirmities afflict his case are sufficient to overcome a procedural bar.

However, we reject this argument and conclude that Gaskin’s constitutional

arguments are insufficient to overcome the procedural bar.” The court never

considered whether evolving standards of decency prohibited Mr. Gaskin’s execution.

This is not an ineffective assistance of counsel claim. The ineffective assistance

of counsel Mr. Gaskin suffered was one failure in the overarching failure of Florida’s

death penalty system to conduct the individualized narrowing of the class of

individuals subjected to the death penalty. Certainly, counsel failed and had he not

done so, Mr. Gaskin would not be petitioning this Court on these issues as one

condemned to death. Mr. Gaskin raises this claim under the Eighth Amendment

2

because the lack of consideration of his mitigation is contrary to the prohibitions

against the arbitrary and capricious punishment, and his sentence of death is

excessive based on well-established constitutional principles. It is indeed cruel and

unusual under the exact meaning of those terms. It is cruel because he will die at the

hands of the state when his mitigation diminishes his culpability. It is unusual

because the decision to execute him was made with none of the reliability that is

required under evolving standards of decency.

“The Eighth Amendment ‘is not fastened to the obsolete but may acquire

meaning as public opinion becomes enlightened by a humane justice.’” Hall v.

Florida, 571 U.S. 701, 708 (2014) (quoting Weems v. United States, 217 U.S. 349, 378

(1910)).

In the years between Stanford v. Kentucky1 and Roper v. Simmons,2 defendants

continued to appeal their convictions regarding juvenile offenders who were

sentenced to death for crimes committed before they turned eighteen, arguing that it

was cruel and unusual punishment to execute juvenile offenders. In the years

between Penry v. Lynaugh3 and Atkins v. Virginia,4 capital defendants appealed their

convictions and filed postconviction motions based on the premise that despite the

ruling in Penry, it is unconstitutionally cruel and unusual punishment to execute the

1 492 U.S. 361 (1989) (holding that the decision whether to subject defendants under 18 years of age

to capital punishment must be made locally and could not be categorically pronounced as cruel and

unusual).

2 543 U.S. 551 (2005) (holding that standards of decency had evolved so that executing minors is cruel

and unusual punishment).

3 492 U.S. 302 (1989) (rejecting the claim that the Eighth Amendment bars death sentences for the

intellectually disabled).

4 536 U.S. 304 (2002) (holding that evolving standards of decency placed a substantive restriction on

the execution of the intellectually disabled).

3

mentally retarded.5 These defendants were denied by various courts based on

Stanford and Penry; that is, until Roper and Atkins were decided, and now it is the

national consensus and the law of the land that it is cruel and unusual punishment

to execute those who were juveniles at the time they committed a capital crime as

well as the intellectually disabled.

“The Eighth Amendment’s protection of dignity reflects the Nation we have

been, the Nation we are, and the Nation we aspire to be. This is to affirm that the

Nation’s constant, unyielding purpose must be to transmit the Constitution so that

its precepts and guarantees retain their meaning and force.” Hall, 571 U.S. at 708.

In this case, four jurors who knew nothing about Mr. Gaskin nevertheless determined

that he was not a member of the class of people who are subject to the death penalty.

Had the jury heard all the available mitigation, even if it contained detrimental

information, two more votes would have guaranteed that Mr. Gaskin died a natural

death in prison, rather than be subject to execution by the State.

Evolving standards of decency insist that an individual’s mitigation must be

considered to ensure that he indeed belongs to the class of persons subject to the

death penalty. The lack of consideration of Mr. Gaskin’s mitigation, at trial and now,

shows that his execution violates his rights under the Eighth Amendment because

his case has never been narrowed to the most aggravated and least mitigated.

While the State and the FSC relied on the other aggravating factors present in

this case, this ignores the fact that the vote was a mere 8-4 with no real mitigation

5 Evolving standards of decency have dictated the usage of the term “intellectually disabled” instead

of the previously used term “mentally retarded.”

4

presented, and with an unconstitutional instruction in the WEAC aggravating factor.

The FSC failed to recognize that the very reason this Court found the WEAC

aggravating factor unconstitutional was because it was vague and created a

substantial risk that an individual could be executed without sufficient individual

consideration of whether death should be imposed.

Further, the State argues that this claim is barred by the law of the case

doctrine. First, there is no law of the case in this Court because this Court never ruled

on the claims presented here. To the extent that Mr. Gaskin has filed previous

certiorari petitions, a denial of certiorari is not considered a ruling on the merits. The

State knows this well-established legal principle yet ignores it in an attempt to

dissuade this Court from exercising its well-established jurisdiction. Under the

State’s distorted view of the law of the case, there would be no judicial review of any

lower court decisions because lower courts would be given the right to preclude review

under the law of the case. Moreover, no party could ever seek review in a higher court

under additional facts or based on changes in the law or the society in which we live.

Any state ground was not independent and adequate. The State has ignored

Mr. Gaskin’s argument that his execution would be a manifest injustice, which can

and has overcome collateral estoppel and res judicata as well as the law of the case.

The FSC has acknowledged the clear principle “that res judicata will not be invoked

where it would defeat the ends of justice. . . . We hold that collateral estoppel will not

be invoked to bar relief where its application would result in a manifest injustice.”

State v. McBride, 848 So. 2d 287, 291-92 (Fla. 2003), (internal citations omitted).

5

Further, the law of the case does not prevent relief when it is necessary “to reconsider

and correct erroneous rulings in exceptional circumstances and where reliance on the

previous decision would result in manifest injustice.” State v. Owen, 696 So. 2d 715,

720 (Fla. 1997). There can be no more exceptional circumstance than the state taking

a life. It would be a manifest injustice if a man as damaged as Mr. Gaskin were to be

executed given that his case is not one of the most aggravated and least mitigated.

ARGUMENT II

The State refutes Mr. Gaskin’s second argument saying that he has failed to

demonstrate why this Court should recede from Spaziano v. Florida,6 that this claim

is procedurally barred, and any holding would not retroactively affect Mr. Gaskin.

This Court has the Power to Adjudicate This Claim

The State misapprehends the ability of this Court to adjudicate claims that the

lower courts have held are procedurally barred. However, while the Florida Supreme

Court claims its decision in this case rests on res judicata, this is mistaken. Rather,

the decision rests not only on the FSC’s misinterpretation of their own precedent, but

the FSC’s decision to ignore the national consensus, the evolving standards of

decency, as well as Florida law as it currently stands.

This case presents an important question about capital jury sentencing –

whether the execution of a person who was sentenced to death by a non-unanimous

jury violates the Eighth Amendment prohibition against cruel and unusual

punishment. Both the evolving standards of decency and the original understanding

6 468 U.S. 447 (1984).

6

that a unanimous jury verdict was required before a defendant could be executed

support a finding that a death sentence based on anything less than unanimity is a

violation of the Eighth Amendment. It is counterintuitive and incongruent to hold

that while the unanimous vote of twelve jurors is required to convict a person of firstdegree murder, it is not necessary to condemn that same person to death.

The State Mistakenly Claims the Right to a Unanimous Jury Sentence Only

Arises Under the Sixth Amendment, not the Eighth.

It is interesting to note that the State does not dispute the overwhelming

national consensus in favor of unanimous capital jury sentencing and the original

public understanding that executions could only be carried out upon a unanimous

jury verdict. Instead, the State raises a novel Sixth Amendment preemption

argument and posits that the Eighth Amendment does not apply to trials as the sole

reason not to revisit Spaziano. (BIO at 13-15) (“Gaskin’s claim has nothing to do with

his punishment being cruel or unusual”). These arguments do not justify denying

certiorari review, and, in any event, are incorrect.

The State’s novel Sixth Amendment preemption argument has long been

rejected by this Court. The State implies that because the Sixth Amendment contains

the right to a jury, no other constitutional protection can safeguard a defendant’s

rights with respect to juries. This has never been the case. The Sixth Amendment

requires that juries be unanimous to convict a defendant of a serious crime,7 while

the Due Process Clause of Fifth and Fourteenth Amendments requires that the jury’s

7 Ramos v. Louisiana, 140 S. Ct. 1390 (2020).

7

determination to convict be beyond a reasonable doubt.8 The Eight Amendment

requires heightened reliability in the determination that death is an appropriate

sentence, and if an error is left uncorrected, the fundamental fairness of sentencing

is affected. See Caldwell v. Mississippi, 472 U.S. 320, 340 (1985).

Further, Mr. Gaskin’s claim is premised on both the Sixth Amendment right

to a jury, but also on the evolving standards of decency under the Eighth Amendment.

This argument relates to the national consensus that began with Furman v. Georgia9

and has gained momentum in the wake of Hurst v. Florida.10

The FSC unreasonably discounted that the jury makes numerous findings of

fact, without which an individual cannot be sentenced to death. Mr. Gaskin’s jury

made no factual determinations regarding whether Mr. Gaskin belonged to the class

of individuals subject to death. Again, the FSC failed to engage in the evolving

standards of decency at the heart of the argument. Mr. Gaskin raised significant

constitutional issues that were unique to him. The FSC failed in its duty to fully

adjudicate them.

Hurst should apply to all defendants who were sentenced to death by nonunanimous juries.

The State claims that Mr. Gaskin failed to address the question of retroactivity

of any decision holding that the Eighth Amendment requires jury sentencing,

however this is incorrect. In his motion for postconviction relief, Mr. Gaskin claimed

that his death sentences and execution violated the Sixth, Eighth, and Fourteenth

8 Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1983).

9 408 U.S. 238 (1972).

10 577 U.S. 92 (2016).

8

Amendments because he was sentenced to death by a non-unanimous jury and that

the FSC had acted arbitrarily and capriciously when it set a cut-off date for Hurst

relief. Mr. Gaskin unequivocally asserted that based on Hurst, he was denied his

right to a jury determination, proof beyond a reasonable doubt, and unanimity under

the Sixth and Fourteenth Amendments. He further asserted that because of Florida’s

failure to remedy these violations, Mr. Gaskin’s sentences violate the Eighth

Amendment’s bar against excessive, arbitrary, and capricious punishment and equal

protection under the Fourteenth Amendment.

When Mr. Gaskin sought relief from his non-unanimous jury death

recommendation after Hurst, the FSC found that Mr. Gaskin was not entitled to

relief, holding held Hurst was not retroactive to cases that became final prior to the

USSC’s ruling in Ring v. Arizona, 536 U.S. 584 (2002). Gaskin v. State, 218 So. 3d

399, 401 (Fla. 2017) (citing Asay v. State, 210 So. 3d 1, 29-30 (Fla. 2016)).11 Since

then, the FSC has adhered to that fundamentally flawed and arbitrarily drawn

retroactivity line. See Wright v. State, 312 So. 3d 59, 60 (Fla. 2021). But for this

unconstitutionally capricious decision, Mr. Gaskin would have received relief under

Hurst and would not now be subject to this death warrant.

The FSC’s decisions in Asay and Mosley v. State, 209 So. 3d 1248 (Fla. 2016),

that Florida would only remedy Hurst violations in the cases of those inmates whose

Senior Justice Perry dissented in part, stating, “I dissent because Hurst v. Florida does apply

retroactively to Gaskin’s case.” Gaskin, at 404. Justice Pariente also dissented in part, stating that

“fundamental fairness concerns emanating from the constitutional rights at stake require us to hold

Hurst fully retroactive to all death sentences imposed under Florida’s prior, unconstitutional capital

sentencing scheme.” Gaskin, at 401. Justice Pariente further pointed out that Mr. Gaskin had raised

the unconstitutionality of non-unanimous death verdicts during trial. Id., at 403.

11

9

direct appeals concluded after June 24, 2002, arbitrarily and capriciously denied

relief to 129 condemned inmates while granting relief to 151 others – despite all of

those inmates’ death sentences being infected by the identical constitutional error.

Mr. Gaskin has argued that while the June 4, 2002, decision date of Ring may have

seemed to be a reasonable breaking point to the FSC, it is anything but. The date of

the conclusion of a defendant’s direct appeal has no meaningful relationship to the

reprehensibility of his crime or the depravity of his character and serves no purpose

in what is supposed to be a narrowing function: death sentences are constitutionally

required to be limited to the most aggravated and least mitigated of cases. Sorting on

this basis rather than an arbitrary date avoids the capricious infliction of the death

penalty, whereas the current state of the law utterly fails to narrow the class of

persons subject to the death penalty. A state death penalty rule, even if it is clear and

easily administered, is unconstitutional unless it is calibrated to culpability and

“ensure[s] consistency in determining who receives a death sentence.” Kennedy v.

Louisiana, 554 U.S. 407, 436 (2008).

Florida’s partial retroactivity also violates the Equal Protection Clause of the

Fourteenth Amendment. Distinctions in state criminal laws that impinge upon

fundamental rights must be strictly scrutinized. See, e.g., Skinner v. Oklahoma, 316

U.S. 535, 541 (1942); McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Eisenstadt v.

Baird, 405 U.S. 438, 447 (1972). Capital defendants have a fundamental right to a

reliable determination of their sentences. See Lockett v. Ohio, 438 U.S. 586, 604

(1978). When a state draws a bright line between those capital defendants who will

10

receive the benefit of a constitutionally valid sentencing process and those who will

not, the state’s justification for the line must satisfy strict scrutiny. The line drawn

here by the FSC cannot meet that standard. See Dep’t of Agriculture v. Moreno, 413

U.S. 528 (1973).

Retroactivity doctrines curtailing the availability of postconviction relief

means that some capital defendants will not benefit from favorable developments in

the law because the system failed them too soon. The state interests supporting those

nonretroactivity doctrines center upon conserving judicial resources by leaving

undisturbed rulings that may have appeared correct when made. To meet even the

most relaxed equal protection scrutiny, the retroactivity lines drawn by a state must

have a rationally articulable connection to those objectives. See Moreno, 413 U.S. 528.

There is no such connection in this case.

Less than ten years ago the FSC held that “before the trial judge may consider

imposing a sentence of death, the jury in a capital case must unanimously and

expressly find all the aggravating factors that were proven beyond a reasonable

doubt, unanimously find that the aggravating factors are sufficient to impose death,

unanimously

find

that

the

aggravating

factors

outweigh

the

mitigating

circumstances, and unanimously recommend a sentence of death.” Hurst v. State, 202

So. 3d 40, 58 (Fla. 2016) (emphasis supplied), see also Perry v. State, 210 So. 3d 630

(Fla. 2020).12 The FSC quoted U.S. v. Lopez, saying “’both the defendant and society

“[W]e resolve any ambiguity in the Act consistent with our decision in Hurst. Namely, to increase the penalty from

a life sentence to a sentence of death, the jury . . . must unanimously recommend a sentence of death.” Perry, at 640.

12

11

can place special confidence in a unanimous verdict.’” 581 F.2d 1338, 1341 (9th Cir.

1978).

Now, the court that once said “[i]n requiring unanimity . . . in its final

recommendation if death is to be imposed, we are cognizant of significant benefits

that will further the administration of justice,” Id., is now saying that “the Eighth

Amendment does not require a unanimous jury recommendation of death.” Dillbeck

v. State, 2023 WL 2027567 (Fla. February 16, 2023) at *7, citing Poole v. Florida, 297

So. 3d 487 504 (Fla. 2020).

Regardless of the FSC’s holdings in Poole and Dillbeck, Florida law currently

requires a jury to make findings regarding the claimed mitigators, as well as make a

unanimous finding regarding the applicable aggravators, and come to a unanimous

verdict in order to impose a death sentence. Fla. Stat, § 921.141(2)(c). The current

Florida law requiring a unanimous death sentence recommendation is reflective of

the national consensus on that issue. To deprive Mr. Gaskin of that right based

merely on one date shows precisely how arbitrary and capricious the death penalty

is in Florida.

ARGUMENT III

This was not simply a reassertion of an old Espinosa13 claim. Beyond the

nuances of Espinosa, this is a claim that calls into question the ability of the Florida

courts to serve as the primary decider of constitutional violations.

13 Espinosa v. Florida, 505 U.S. 1079 (1992).

12

While the State seems to argue that it is the number of objections to an

arbitrarily applied aggravator that would allow for this Court to consider this claim,

the State’s argument is disingenuous at best. Regardless of how many mentions the

WEAC aggravator received in Mr. Gaskin’s pretrial motion objecting to the

aggravators, it was nonetheless objected to, as pointed out in the State’s brief in

opposition: “trial counsel wrote, ‘the vague wording of (5)(i) and (h) [the subsection

establishing the HAC aggravator] and their arbitrary application allows for their

application in all murders.’” BIO at 21 (emphasis supplied). A “bare mention”

notwithstanding, this Court clearly recognized that the objection was preserved when

it remanded this matter to the FSC to consider Mr. Gaskin’s Espinoza claim.

On remand, the FSC found the issue was not preserved, and even if it had been,

the error was harmless as it related to Mr. Gaskin’s death sentence for the murder of

Georgette Sturmfels. Gaskin v. State, 615 So. 2d 679, 680 (Fla. 1993). However, the

FSC ignored the impact that the instruction had on the jury because under Florida’s

then (unconstitutional) death penalty system, the role of the jury was merely to

provide a majority recommendation to the judge, who would then make the final

decision.

In the post-warrant litigation, the FSC again had the opportunity to correct

the Espinoza error but failed to consider the important perspective of a jury, even

under Florida’s unconstitutional system at the time of Mr. Gaskin’s trial. Mr. Gaskin

received his death recommendation from a jury that heard essentially no mitigation

yet was instructed that a very serious aggravating factor needed to be weighed on the

13

scale towards a death recommendation. The WEAC instruction provided no guidance

for its application and would properly be seen as applying to every murder. Yet

despite the obvious Espinosa error, and the misleading of the jury, the death

recommendation was a mere eight-to-four. Under these circumstances, the error

could not be harmless, under any standard and certainly not beyond a reasonable

doubt.

ARGUMENT IV

The State refutes Mr. Gaskin’s fourth argument stating that this Court lacks

jurisdiction to review the FSC’s judgment because the rejection of Mr. Gaskin’s claims

were based on well-settled state law grounds and rules of procedure, and that Mr.

Gaskin was afforded all of his rights under the United States Constitution because

the FSC has recognized its responsibility as the highest court in Florida to do justice

and enforce those rights.

However, the State is mistaken in this assertion. While the FSC may have that

duty, whether it has fulfilled that duty in this case is not certain.

Mr. Gaskin’s post-warrant litigation raised a number of manifest injustices

that are fully argued above. The FSC chose not to remedy these, although they could

have done so. The law of the case, res judicata and collateral estoppel were overcome

by the manifest injustices, yet there was no relief for Mr. Gaskin. See State v. Owen,

696 So. 2d 715, 720 (Fla. 1997). Moreover, the FSC has routinely decided that stare

decisis only applies in certain situations. See State v. Poole, 297 So. 3d 487, 491 (Fla.

14

2020);14 Bush v. State, 295 So. 3d 179, 201 (Fla. 2020);15 Phillips v. State, 299 So. 3d

1013, 1022 (Fla. 2020);16 Lawrence v. State, 308 So. 3d 544, 549 (Fla. 2020).17 In each

of these decisions, the FSC reduced the constitutional protections afforded to criminal

defendants and especially death row prisoners.

The FSC completely abandoned its duty to remedy serious constitutional error

in ruling on this case as it did, and these claims are worthy of this Court’s exercise of

jurisdiction to remedy this failure. In Mr. Gaskin’s case he was a mere two votes from

life, thus it is beyond belief that the lack of mitigation and the Espinoza error had no

effect. It is a certainty when this is considered under contemporary standards of

decency as seen in Florida’s current death penalty system which requires detailed

fact finding by a jury and a unanimous vote.

The imposition of the death penalty and the signing of the death warrant in

this case is especially troubling given the eight-to-four jury recommendation. Four

members of the jury, citizens of the State of Florida, believed that Mr. Gaskin should

spend the rest of his life in prison and die a natural death, rather than being put to

death by the state. There are other prisoners on death row who received fewer votes

for life, or a unanimous vote, who are not under a death warrant. The last man to be

14 In Poole, a five-member FSC rejected the majority opinion that had been entered four years earlier

in Hurst v. State, ruling that Hurst was decided in error and was based on a fundamental reading of

this Court’s ruling in Hurst v. Florida. The FSC ruled that the Sixth Amendment only requires that

the jury’s decision that a defendant is eligible for the death penalty must be unanimous, and found

that this Court had not definitively ruled that the death sentencing decision itself must be unanimous.

15 In Bush, the FSC overturned Florida’s century-old circumstantial evidence standard.

16 In Phillips, the FSC overturned its own precedent and limited enforcement of Hall v. Florida, calling

Hall an “evolutionary refinement” of law, rather than a development of fundamental significance, thus

allowing for partial rather than full retroactivity in applying Hall.

17 In Lawrence, the FSC abandoned proportionality review after decades of performing such reviews,

often sua sponte.

15

executed by Florida also received an eight-to-four jury recommendation. This is all

occurring while the State of Florida is poised to roll back the constitutionally required

unanimous death verdict to an eight-to-four “supermajority,” and return Florida to

its outlier status as regards to the number of jurors required to obtain a death

sentence. This apparent trend in death warrants highlights exactly how arbitrary

and capricious the imposition of the death penalty is in the State of Florida.

While finality may have its place, it should not come at the expense of justice.

The Florida courts like this Court were faced with numerous injustices in Mr.

Gaskin’s case and failed to do so. In fact, after this Court remanded Mr. Gaskin’s case

in 1991 to vacate two adjudications for felony murder, it took the Florida courts until

2014 to adhere to that mandate. The Florida Supreme Court had jurisdiction under

the Florida Constitution and chose not to use this jurisdiction to remedy the failure

to narrow Mr. Gaskin’s case and to allow an individualized determination of whether

he should be subject to death. This Court has both specific constitutional authority

and the inherent authority to do justice in an individual case. Mr. Gaskin asks this

Court to do so now.

16

CONCLUSION

The petition for writ of certiorari should be granted.

s/Eric C. Pinkard

Eric C. Pinkard

Florida Bar No. 651443

Law Office of the Capital Collateral

Regional Counsel – Middle Region

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

Phone No. (813)558-1600 Ext 603

Fax No. (813) 558-1601

Email: Pinkard@ccmr.state.fl.us

*Attorney Of Record For Petitioner

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