by Reg Brown *

Since January 1, 1998, the Florida Supreme Court has reversed death sentences in thirty-nine of forty-nine direct appeal capital cases. This seventy-nine percent reversal rate is the highest in the Nation and has prompted leading state legislators to publicly question the Florida high court's willingness to apply the law in death penalty cases.

The most recent controversy about Florida's death penalty jurisprudence erupted in early July when the Florida Supreme Court vacated six death sentences in a single day. Each case was decided by a four to three margin and highlights a pattern of judicial "nullification" of death penalty sentences.

In Ramirez v. State, 1999 WL 506949, the Florida Supreme Court reviewed Nathan Ramirez's conviction and death sentence for his role in the execution-style murder of Mildred Boroski, a seventy-one year-old widow. Ramirez and another male broke into Boroski's home, killed her pet dog, tied her to a bed with telephone cords and raped her. The two men then forced Boroski into a car _ along with the dead dog _ and drove her to a remote field where Ramirez shot her twice in the head. After finishing the gruesome killing, Ramirez and his cohort took a few dollars and some change from Boroski's purse and spent it playing video games.

Police investigators discovered some of Boroski's possessions in Ramirez's custody and asked him to come to the police station for a videotape interview. Ramirez agreed. The investigators began the interview without a Miranda warning, because they believed at the time that Ramirez was a fact witness rather than a murder suspect. Within five minutes, however, Ramirez admitted being in the Boroski home on the night of the murder. One of the investigators quickly stopped the interview and said to his colleague

Why don't you let [Ramirez] know about his rights. I mean, he's already told us about going in the house and whatever. I don't think that's going to change [Ramirez's] desire to cooperate with us.

The colleague immediately read Ramirez his Miranda rights which Ramirez acknowledged and waived. Ramirez then proceeded to relate in detail how he and his cohort broke into Boroski's home and killed her.

Despite the investigators' careful and prudent approach, four Florida Supreme Court justices reversed Ramirez's conviction and sentence. The justices' basis for reversal: a claim that Ramirez's Miranda warning was given in a manner that unconstitutionally "minimize[d] and downplay[ed]" the significance of his rights and exploited his pre-Miranda admission about being in the house.

In a second case, Almeida v. State, 1999 WL 506963, the same four justice majority relied on an alleged Miranda violation to reverse the conviction and death sentence of triple-murderer Osvaldo Almeida. In Almeida's case, investigators provided a Miranda warning before beginning any questioning and also obtained a signed waiver. Several minutes later, Almeida made an inculpatory statement about an unrelated killing. The investigators taped the rest of the questioning, leading to the following taped discussion:

Q: All right. Prior to us going on this tape here, I read your Miranda rights to you, that is the form that I have here in front of you, is that correct? Did you understand all of these rights that I read to you?

A: Yes.

Q: Do you wish to speak to me now without an attorney present?

A: Well, what good is an attorney going to do?

Q: Okay, well you already spoke to me and you want to speak to me again on tape?

Q: We are, we are just going to talk to you as we talked to you before, that is all.

A: Oh, sure.

Almeida then repeated his earlier inculpatory statement and confessed to two other murders.

The Florida Supreme Court nevertheless threw out Almeida's confession, conviction and death sentence, on the grounds that his statement about an attorney was an "unequivocal question that was prefatory to _ and possibly determinative of _ the invoking of a right [to counsel]" and "cast doubt on the knowing and intelligent nature of [Almedia's] prior [Miranda] waiver."

The decisions in Almeida and Ramirez are clearly at odds with the U.S. Supreme Court's holdings in Davis v. United States, 512 U.S. 452, and Oregon v. Elstad, 470 U.S. 298, and will undoubtedly be appealed. In the meantime, however, the decisions will "handcuff the cops" in Florida and add to Miranda's thirty-year legacy of harmful effects on law enforcement. See generally Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stan. L. Rev. 1055 (1998).

As a result of the Almeida decision, for instance, Florida's police investigators are now arguably obligated to function as "station house lawyers" whenever a suspect makes an ambiguous statement about the possible benefits or drawbacks of invoking the right to counsel. Similarly, as a result of the ruling in Ramirez, investigators must now be sensitive about tone, inflection and body language when reading Miranda warnings, in order to avoid "exploiting" or "tricking" suspects into waivers of their rights.

Unfortunately, even good faith compliance with the Almeida and Ramirez decisions may not assure affirmances in future cases if the Florida Supreme Court continues engaging in anti-death penalty judicial activism. Such activism was clearly at work in three other death penalty cases decided on the same day as Almeida and Ramirez, where the court's majority reversed death sentences on dubious "proportionality" grounds. It was also at work in a fourth case where the court's majority ruled that it is "cruel and unusual punishment" to impose the death sentence in any case where the defendant is under the age of seventeen when he or she commits the relevant offense.

Of course, the Florida legislature's outcry over the court's recent decisions _ and a possible rebuke from the U.S. Supreme Court next year _ may prompt greater judicial restraint in the future. If so, the Florida Supreme Court's "Miranda warning" decisions may yet yield some long-term positive results.

* Mr. Brown is Assistant General Counsel to Florida Governor Jeb Bush.