Barwick's arguments at FSC
Darryl Barwick is waiting for the Florida Supreme Court to decide his post-warrant appeal. The Florida Supreme Court’s regular opinion release day is Thursday, but it is possible to see an opinion in Barwick’s case at any time. This post summarizes the arguments on appeal.1
Barwick is on death watch for raping, robbing, and murdering Rebecca Wendt in Bay County. He had been released from prison 78 days earlier for another rape at knifepoint in which the victim survived. Barwick was 19 when he killed Wendt in 1986. The jury unanimously recommended the death penalty for Wendt’s murder.
Governor DeSantis signed his death warrant on April 3, 2023, setting a 30-day warrant period. The circuit court denied Barwick’s motion for postconviction relief and stay of execution, so Barwick appealed to the Florida Supreme Court.
Quick warrant period
Barwick’s first argument focuses on the accelerated 30-day warrant period. This prejudiced him because, among other things, his main counsel at CCRC-North2 had COVID during the trial court proceedings, had other case deadlines, and the “timing of the death warrant to coincide with Holy week, Passover, and Ramadan.” Barwick’s team asked for a stay so that they could have more time to prepare an effective postconviction motion. The trial court rejected these arguments. On appeal, Barwick raises due process claims based on the short time period.
The state responds that there is no constitutional right to counsel in postconviction proceedings, so by extension, there’s no right to effective postconviction counsel. In addition, the State points out that there are multiple lawyers working the case. Barwick’s reply brief argues that he is seeking effective counsel as a statutory right under section 27.702 and Rule 3.112(a), and the State ignores several cases acknowledging this right.
Barwick also points out that the short warrant period is affecting the State’s capital lawyers, too:
Barwick’s age at the time of the crime
Barwick next argues that it is unconstitutional to execute someone who committed the crime before they turned 21, citing a resolution that the American Psychological Association (APA) passed in 2022. The APA’s research indicates that “brain development in the late adolescent stage is indistinguishable from that of juveniles.” Essentially, Barwick argues for an extension of Roper v. Simmons, in which the U.S. Supreme Court held it is unconstitutional to impose the death penalty on a juvenile offender.
The State argues that this issue is procedurally barred and that the 2022 APA resolution is not “new evidence.” On the merits, the state argues that the Florida Constitution’s conformity clause doesn’t give the Florida Supreme Court the authority to extend Roper to individuals that the U.S. Supreme Court hasn’t. The State also argues “there is no reason to extend Roper to individuals under 21.” As to the “evolving standards of decency” test, the state points out that none of the 28 death penalty jurisdictions have raised the age of death-eligibility from 18 to 21 since Roper and that national consensus is 18 years’ old.
Developmental disorders and brain damage
Barwick’s final argument is that his “severe, lifelong, immutable mental illness” bars his execution under the Eighth Amendment. This section of the brief goes through the physical abuse he suffered as a child and outlines his brain injuries, including those inflicted in utero:
He was also severely beaten as a child and “lost consciousness on at least several occasions,” according to family members.
According to the brief, Barwick’s neurodevelopmental disorders were apparent by age 4. His lawyers claim he was misdiagnosed as a “psychopathic sexual deviant” despite the evidence of serious brain damage.
Once again, the State argues that this claim is procedurally barred and wrong on the merits: “[l]ow mental age, neurological disorders, and brain damage do not exempt an individual from execution.”
We’ll see if the court finds any reason to stay the execution and send the case back for an evidentiary hearing. If not, Barwick’s last chance will be at the U.S. Supreme Court. For now, we wait.
“CCRC” = Capital Collateral Regional Counsel.