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Weekly Roundup: Having Their Day in Court

May 29, 2014 - 6:00pm

Gov. Rick Scott is off campaigning. Lawmakers are back home.

But don't let the calm in the Capitol fool you. The real action this week took place in the legal system, from a courtroom in downtown Tallahassee to the U.S. Supreme Court.

Republican operatives spent time in Leon County Circuit Court trying to downplay their roles in drawing new congressional districts in 2012. Meanwhile, the U.S. Supreme Court rejected a key part of Florida's system of determining whether death row inmates should be shielded from execution because of intellectual disabilities.

And just for good measure, Scott called for the Agency for Health Care Administration to launch a legal fight with the federal Department of Veterans Affairs about state inspectors' failed attempts to check out VA hospitals.


Republican legislative leaders have been fond of describing the 2012 redistricting process as the most open and transparent in state history. Maybe that's true, but you couldn't tell it from testimony that continued this week before Leon County Circuit Judge Terry Lewis.

GOP operatives and former House Speaker Dean Cannon took the stand in a lawsuit alleging that the Legislature did not follow constitutional anti-gerrymandering requirements when drawing new congressional districts. Spilling out of the testimony were accounts of behind-the-scenes discussions between Republican Party strategists and legislative aides and puzzling questions about how maps were submitted to the Legislature.

Attorneys for the plaintiffs, including voting-rights groups and seven voters, are trying to show that Republican insiders crafted the congressional districts to help elect GOP candidates. If proven, that could violate the 2010 "Fair Districts" constitutional amendments, which were supposed to rein in the redistricting process that has been used in the past to protect incumbents and the party in power.

During testimony Wednesday, Cannon acknowledged being angry when he learned that top aide Kirk Pepper, at one point in the process, gave copies of the Legislature's maps to GOP consultant Marc Reichelderfer.

"I yelled at him and told him that was stupid," Cannon told David King, a lawyer representing the plaintiffs. "I said that was really dumb. And he apologized, and he agreed that it was."

But maybe the most puzzling issue of the week focused on a map that was purportedly submitted to the Legislature by former Florida State University student Alex Posada. The map included several districts identical to those drawn by Republican Party staff member Frank Terraferma. Lawmakers have publicly praised the "Posada" map as a footprint for their congressional plan.

One problem: Posada said under oath in a deposition that he did not draw the map and did not submit it to the Legislature, according to an attorney for the plaintiffs in the case.

The email address on an account used to submit the map was one Posada "had never seen, never used, never authorized anybody to use to submit those maps under his name," said attorney Vince Falcone, who took the deposition.


For more than 35 years, Freddie Lee Hall has faced the possibility of execution for his role in the 1978 murder of a pregnant woman abducted outside a Leesburg grocery store. But questions have long focused on whether Hall is intellectually disabled -- or in old-school terms, mentally retarded -- and whether that should prevent him from being put to death.

The U.S. Supreme Court this week gave Hall at least a temporary reprieve. Justices, in a 5-4 decision, ruled that Florida's use of a "rigid" IQ score of 70 in determining whether inmates should be shielded from execution "creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional."

Hall's attorneys submitted evidence in state courts that he had an IQ of 71, though that number has been disputed by prosecutors.

Writing for the majority, Justice Anthony Kennedy said using the 70 IQ score as a cutoff prevents courts from considering other types of potentially important evidence in determining whether a person is intellectually disabled. That evidence can include such issues as social adaptation, medical history, behavioral records, school reports and family circumstances.

"Intellectual disability is a condition, not a number,'' wrote Kennedy, who was joined in the majority by justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. "Courts must recognize, as does the medical community, that the IQ test is imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendants eligibility for the death penalty, a state must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number. A state that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability."

But Justice Samuel Alito, writing in dissent, referred to a 2002 ruling in which the Supreme Court said that executing people with intellectual disabilities was unconstitutional. He said that case, known as Atkins v. Virginia, relied on states to determine how best to identify defendants with intellectual disabilities. Alito also took issue with parts of the majority opinion about looking at a person's adaptive behavior in making such determinations.

"No consensus exists among states or medical practitioners about what facts are most critical in analyzing that factor, and its measurement relies largely on subjective judgments,'' wrote Alito, who was joined in the minority by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. "Floridas approach avoids the disparities that reliance on such a factor tends to produce. It thus promotes consistency in the application of the death penalty and confidence that it is not being administered haphazardly."

The decision sends Hall's case back to Florida courts for further consideration. Hall, now 68, is being held at Union Correctional Institution for the murder of Karol Hurst, who was 21 years old and pregnant when she was abducted by Hall and another man. Hurst, whose body was found in a wooded area of Sumter County, was beaten, shot and sexually assaulted, according to court records.


With Florida home to a huge population of veterans and active-duty military, Scott has jumped on the well-documented problems at Veterans Administration hospitals.

And this week, he took another step when he called on the state Agency for Health Care Administration to sue the U.S. Department of Veterans Affairs. The goal is for AHCA inspectors to gain access to VA hospitals so they can determine if the health needs of veterans are being met.

State inspectors have tried for more than a month to get into the hospitals to review allegations of problems such as inappropriate scheduling and treatment. The VA has turned them away, basically saying the state has no authority to inspect federal facilities.

While it's unclear whether the state will have any success legally, the issue, at a minimum, has added to the political squabbling between Scott and Democratic gubernatorial candidate Charlie Crist.

"It's unfortunate that Rick Scott may be attempting to inject politics (through calling for a lawsuit against the VA) into a tragic situation," Crist spokesman Kevin Cate said Wednesday

The Republican Party of Florida, meanwhile, has argued that Crist is the one "exploiting" the VA issue, noting that the former governor included a link to his political campaign and a fundraising page when tweeting a message that Veterans Affairs Secretary Eric Shinseki should resign.

Shinseki, in fact, did resign Friday, though there was no indication the move had anything to do with Crist or Scott.

STORY OF THE WEEK: Leon County Circuit Judge Terry Lewis continued hearing testimony in a legal battle about whether Republican legislative leaders violated constitutional requirements when drawing congressional districts in 2012.

QUOTE OF THE WEEK: "The First District has, by preventing consideration of these documents during trial, jeopardized the stability and integrity of our governmental structure and authorized those who interact with the Florida Legislature on a critical matter such as redistricting to operate under a veil of secrecy. This outcome should be most disconcerting to any supporter of our democratic form of government." -- Florida Supreme Court Justice R. Fred Lewis, as the court overturned a 1st District Court of Appeal decision that would have prevented the use of a Republican consultant's records in the congressional redistricting case.

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