Dillbeck Update

Florida Supreme Court rejected his appeal Thursday

In advance of the regularly-scheduled Monday newsletter, we’re publishing this update on the active death warrant litigation.

Donald Dillbeck’s execution is this Thursday.  The Florida Supreme Court rejected his appeal last Thursday.  This concludes his state court litigation. His cert petition and application for stay of execution to the U.S. Supreme Court will likely be filed at any minute. As of this writing, the Supreme Court website doesn’t have a docket page for his death warrant litigation.

Dillbeck raised three issues in his appeal and three claims in his habeas petition.

Appeal from denial of postconviction claims

First, he argued he was exempt from execution because he has a “neurodevelopmental disorder associated with prenatal alcohol exposure.” Though his IQ is average, he argued this condition should exempt him from execution as an intellectual disability. The court held this was untimely because it should’ve been raised within a year of the claim becoming discoverable. The court also rejected his argument that this claim is distinct from his previous postconviction cases because of the changing science on the condition.

Second, Dillbeck argued that newly discovered evidence related to his first murder conviction should be considered in reweighing his aggravating factors, or at the very least, pause his execution to give him a chance to challenge his prior conviction from 1979.

Recall that Dillbeck was serving a life sentence for killing a deputy sheriff when he walked away from a work detail and ended up in Tallahassee, where he murdered Faye Vann while trying to steal her car. Dillbeck was 15 at the time of the first murder. Dillbeck claims there is new witness testimony available that would show Dillbeck was “insane during the prior murder,” that he was incompetent to accept the guilty plea in 1979, and that the guilty plea contained inaccuracies. The court rejected this claim as untimely and on the merits, finding it’s not the type of evidence that would likely lead to a diminished sentence, because it would only apply to to one of the aggravators in the Vann murder case.

Third, Dillbeck raised a so-called Lackey claim—that the amount of time on death row is itself cruel and unusual punishment under the Eighth Amendment. (We did a Lackey explainer thread on Twitter after the February 9 oral arguments at the Florida Supreme Court.)

As one can imagine, this claim is difficult immediately before an execution, when that time on death row will end. But this is an interesting claim for other reasons.

The state could’ve just argued that Lackey claims aren’t recognized by the U.S. Supreme Court and the Florida Supreme Court has rejected this theory on numerous occasions. Instead, the state also argued that a class action settlement between the state and death row inmates barred this claim because Dillbeck was a member of the class and the conditions of confinement have improved as a result of the settlement. According to the state, one of the settlement clauses waived any claims related to confinement before the settlement.

That may well be an accurate description of the settlement. But the settlement agreement is not in the Dillbeck record, was not argued below, and was only passingly referred to in a footnote in the lower court’s order (which the state drafted for the judge to sign, according to the reply brief). (You can read the federal court’s order adopting the settlement if you’re interested).

Usually it’s an appellate no-no to raise evidence not in the record on appeal. Typically, in civil (non-death penalty) litigation, if a contract bars a claim, that contract needs to be in the record to support the defense or it can’t be used.

The court, for its part, didn’t find that the settlement barred the Lackey claim and didn’t mention that the state made this argument.

In future cases, it’ll be interesting to see whether the state will incorporate the class settlement as part of its defense of Lackey-type claims.

Habeas corpus

In his habeas petition, Dillbeck argued that the 8-4 jury recommendation violated the Eighth Amendment. This isn’t the first time the court ruled against Dillbeck on this claim, so the court cited its prior decision in rejecting the argument.

Dillbeck also challenged the HAC aggravator (that is, “heinous atrocious and cruel”) as unconstitutional. Dillbeck argued HAC doesn’t narrow the class of cases deserving the death penalty because virtually every murder could qualify as HAC. The whole point of aggravators is to set apart murders deserving the death penalty from (it sounds grotesque) other murders that are not as horrific. The court rejected the argument as procedurally barred (he raised it on direct appeal and lost) and on the merits, pointing to cases upholding HAC through the years.

Finally, Dillbeck argued that he shouldn’t qualify for the escape aggravator because the evidence does not show he killed Vann to silence a witness and avoid detection. The court held he was procedurally barred from raising this claim now and that the procedural bar doesn’t result in “manifest injustice” because the prior violent felony and HAC aggravators were well established.

Turning to SCOTUS

Dillbeck will likely file a last-minute petition and application for stay to SCOTUS, based on some or all of these arguments. We’ll share the link on Twitter when we see it. Once the briefs are in, we’ll be watching for a decision from the high court.

Without court intervention or unforeseen delays, Dillbeck will be executed per the lethal injection protocol on Thursday at 6 p.m.