TALLAHASSEE -- The execution of Paul Augustus Howell scheduled for Tuesday has put Florida’s death penalty process under the microscope again.
Howell, 42, was convicted in 1992 of the pipe-bomb killing of Florida Highway Patrol Trooper Jimmy Fulford in Jefferson County, east of Tallahassee. If he dies by lethal injection as scheduled, his attorneys say, he will be the first Florida inmate to die without his case having been reviewed in federal court under a habeas corpus appeal. They argue Howell deserves that review — and a chance to seek another trial.
They say the court never heard about the conflict of interest involving his trial attorney, the failure to tell the court of Howell’s brain damage, his paranoia, child abuse or his lost court files. And the court never heard about Howell’s inadequate representation from the appellate lawyer who missed a crucial deadline for his federal review.
“Lawyers who never met the client in the 13 years they represented him lost his records in a flood and haven’t asked for new ones,” said Sonya Rudenstine of Gainesville, a new attorney hired by the inmate’s family. “If it weren’t so tragic, it would be a comedy of errors.”
The Florida Supreme Court rejected an appeal last week by Howell’s new attorneys. The court said it could not address claims he may raise in federal court. His attorneys have filed a new request in federal court in Tallahassee.
The habeas corpus review is routine in death-penalty cases in which the federal government provides inmates with an experienced, federally funded lawyer to have his case presented before a federal court as a final layer of protection before execution.
Howell’s last-minute appeal for more time comes as the Florida Legislature is moving in the other direction — toward limiting the time inmates should have to get their cases reviewed.
A bill being pushed through the Florida House by Rep. Matt Gaetz, R-Shalimar, would accelerate the time it takes to execute death row inmates in Florida by an estimated five years.
According to Gaetz, inmates spend an average of 14 years on death row before they are executed. His bill would not only limit the time state courts have to review the cases, it would ban any lawyer deemed ineffective by the court from taking a capital case for five years.
Without that, Gaetz argues, death penalty opponents will continue to have a compelling argument “that the punishment costs too much and doesn’t effectively deter crime.”
Howell, a member of a Jamaican drug posse, was convicted after building a pipe bomb to kill a Jackson County woman who had information that could link him to a drug-related murder in South Florida. He hid the bomb in a gift-wrapped microwave oven and had a driver deliver it.
As the car was traveling through Jefferson County, Trooper Fulford stopped it for speeding. He then inspected the vehicle, unwrapped the microwave oven and the bomb exploded, killing him.
Howell’s attorneys now want the court to recognize that he never should have been represented in the first case by his attorney, Frank Sheffield, who is now a state court judge in Jefferson County.
When Howell faced state murder charges, he was already under indictment in a federal trial for drug trafficking. Sheffield represented him in the case, but withdrew after his secretary, who was also his wife, told prosecutors she had received a telephone call from an anonymous caller who told her that “If Paul Howell goes down, Mr. Sheffield is going down also.”
Howell was convicted of the drug charges, and Sheffield decided to take his murder case despite protests by prosecutors that he should be removed. Because of the conflict, Howell’s family didn’t trust that Sheffield would be impartial, Rudenstine said. They refused to work with him to produce evidence about Howell’s mental health or family history, elements that should have been presented as mitigating elements in the sentencing phase of his criminal trial, she said.
The result, she said, is that the mitigation phase of the sentencing “was 25 minutes long when it should have lasted three days.”
A state court judge allowed Sheffield to remain on the case, but Howell’s attorneys now argue that is grounds for a federal habeas corpus review.
Howell lost his chance to make this argument earlier when, in 1999, a new lawyer who had never handled a federal case missed the federal court deadline. She dropped off the case, Rudenstine said, but his subsequent attorneys never raised a claim that Howell had been given ineffective representation.
“He’s been on death row for 22 years and still hasn’t had one-third of his appeals,” Rudenstine said. “If you speed up the conviction process, you are not going to give people better justice.”
After the Oklahoma City bombing in 1996, Congress imposed a one-year filing deadline for the habeas corpus review, but the U.S. Supreme Court has since ruled that there may be exceptions, including cases of inadequate representation.
The dilemma facing the state in Howell’s case exposes the shortcomings of Gaetz’s proposal, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.
“It would be faster to do these cases right the first time — a good lawyer at trial and a good lawyer at the state appeals process and again when you get to he federal court,” he said. “But when the harm’s been done, should you speed up the process to execute somebody who lacks a federal constitutional review?”
A provision in the federal law already allows Florida to speed up its death row case load, Dieter said. The federal deadline could be moved from one year to 180 days, but the state would have to show the federal court that it provided inmates with adequate legal counsel throughout the process. Neither Florida, nor any other state, has ever put the resources in place to take advantage of that exception, Dieter said.
Gaetz said his bill would not blindly speed up the post-conviction process in Florida, and that it would impose penalties on lawyers for ineffective representation. He also wants to restore the Capital Collateral Representative process in the Northern District of Florida, the region where Howell was convicted, which provides experienced lawyers in capital cases. But he continues to believe the system is rife with “legal gamesmanship.”
“In a vast majority of these cases there have not been claims of actual innocence — they are just multiple claims regarding ineffective counsel,” Gaetz said. “The most egregious part is that a lawyer can basically fess up to being an ineffective counsel in one courtroom and then walk into the next room and pick up the next defendant.”
For Howell’s attorneys, that’s exactly why they want the federal court to review his case.