Application For Stay & MTN To Vacate 29JAN2018
Application For Stay & MTN To Vacate 29JAN2018
STATE OF FLORIDA
CASE NO. 1993-CF-870-A
v.
The claims raised herein are unencumbered by legitimate procedural impediments: one is
founded on a new scientific consensus that was not available during prior proceedings; the other
is a claim that becomes ripe for review only after a death warrant is issued. Both claims implicate
the Eighth Amendment’s constitutional prohibitions against cruel and unusual punishment.
without the truncating concerns of a death warrant. This Court is authorized to enter a stay of
execution. As this submission demonstrates, the equities of this case make it appropriate for this
Eric Scott Branch was indicted on one count of first degree murder, one count of sexual
battery and one count of grand theft auto on February 23, 1993. Trial began on March 7, 1994. Mr.
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The judgments and sentences under attack are as follows: Judgment of guilty for Count I (first
degree murder), sentence of death; judgment of guilt for Count II (sexual battery), life sentence;
judgment of guilty for Count III (grand theft auto), sentence of five years imprisonment.
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Branch was convicted as charged on March 10, 1994. The jury recommended death by a vote of
10-2 and the trial court followed its recommendation, sentencing Mr. Branch to death on May 3,
1994. The Florida Supreme Court affirmed Mr. Branch’s convictions and death sentence on direct
appeal. Branch v. State, 685 So. 2d 1250 (Fla. 1996). 2 The United States Supreme Court denied
certiorari review on May 12, 1997. Branch v. Florida, 520 U.S. 1218 (1997).
On May 7, 1998, Mr. Branch filed a Rule 3.850 motion. It was amended on April 1, 2003
and again on October 10, 2003. 3 After an evidentiary hearing, the circuit court denied relief. On
appeal, the Florida Supreme Court affirmed. 4 On August 31, 2005, Mr. Branch filed a petition for
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The following issues were raised on direct appeal: (1) failure to grant a continuance; (2) failure
to conduct a Nelson hearing; (3) failure to give a requested circumstantial evidence instruction; (4)
error in admitting a photograph of the victim; (5) insufficient evidence; (6) improper comment on
Mr. Branch’s right to remain silent; (7) failure to give a requested jury instruction defining
mitigating circumstances; (8) error in admitting evidence of other crimes; and (9) improper victim
impact evidence. The Florida Supreme Court denied all of Mr. Branch’s claims.
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Mr. Branch raised the following issues: (1) Ineffective assistance of counsel at the guilt phase;
(2) ineffective assistance of counsel at the penalty phase; (3) newly discovered evidence that the
judge and jury considered a non-statutory aggravator; (4) Mr. Branch’s rights under Ake v.
Oklahoma were violated; (5) Mr. Branch was denied his constitutional rights when his lawyer was
prevented from interviewing jurors; (6) Mr. Branch’s sentencing jury’s sense of responsibility was
improperly diminished; (7) Florida’s capital sentencing scheme is unconstitutional under Ring v.
Arizona; (8) lethal injection is cruel and unusual punishment; (9) Mr. Branch may be incompetent
at the time of execution; (9) the trial court improperly relied on an automatic aggravator; (10) Mr.
Branch was denied due process due to omissions in his trial transcripts; (11) agencies improperly
withheld public records; (12) Florida’s capital sentencing scheme is unconstitutional on its face;
and (13) cumulative error.
4
In his Rule 3.851 appeal, Mr. Branch raised nine issues: (1) The trial court erred in finding that
defense counsel was not ineffective for failing to file a motion to suppress; (2) the trial court erred
in finding defense counsel was not ineffective for failing to investigate and present mitigation; (3)
the trial court erred in finding defense counsel was not ineffective for failing to hire experts; (4)
the trial court erred in finding the Indiana conviction amounted to a prior violent felony; (5) the
trial court erred in finding defense counsel was not ineffective for failing to object to the Indiana
abstract judgment; (6) the trial court erred in finding defense counsel was not ineffective for failing
to impeach; (7) the trial court erred in finding Mr. Branch’s failure to investigate claim without
merit; (8) the trial court erred in finding defense counsel’s failure to object reasonable; and (9) the
trial court erred in not addressing cumulative errors.
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writ of habeas corpus in the Florida Supreme Court. The Florida Supreme Court denied Mr.
Branch’s petition on August 31, 2006. 5 Rehearing was denied on March 12, 2007.
On March 28, 2007, Mr. Branch filed a federal habeas petition in the Northern District of
Florida. Mr. Branch’s petition was denied on March 30, 2010, with a Certificate of Appealability
granted. The Eleventh Circuit denied Mr. Branch’s appeal on April 21, 2011. Branch v. Sec’y, 638
From running barefoot through a blizzard covered in blood to get away from his abusive
father at the age of five, to his anguish-filled decision to give his daughter up for adoption, thereby
losing his first chance to have the family he so desperately wanted, to becoming the victim of a
gang-rape in prison as a teenager, Eric’s traumatic upbringing was riddled with physical and
emotional abuse, neglect and abandonment. Eric’s short life before ending up on death row can
The science of human brain development today “informs that the human brain is not
appropriately ‘formed’ or mature until an individual reaches their mid-twenties.” Report of Faye
E. Sultan, Ph.D., at 16. “[S]cience now recognizes that the cut-off of 18 years is arbitrary, and not
in accord with the current understanding of the scientific community. . . . [T]he current scientific
understanding of adolescent brain development was not available during earlier proceedings in
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In his federal habeas petition, Mr. Branch raised four issues: (1) Ineffective assistance of appellate
counsel for failing to sufficiently argue the State failed to prove the prior violent felony aggravator;
(2) ineffective assistance of appellate counsel for failing to raise the issue of the trial court’s error
in admitting DNA evidence; (3) ineffective assistance of appellate counsel for failing to raise the
issue of the trial court’s error in denying Mr. Branch access to his attorney; and (4) ineffective
assistance of appellate counsel for failing to argue that Florida’s Nelson inquiry is unconstitutional.
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Eric Branch’s case.” Report of James Garbarino, Ph.D., at 1. Eric Branch was a 21-year-old
Eric Branch was born on February 7, 1971, in Rockport, Indiana, to Sharon and Neal
Branch. When Eric was born, they already had one child, Robert Neal Branch. Sharon was fifteen
and Neal was sixteen at the time, and Neal’s family, the Branches, felt marriage was the
appropriate thing to do. Pryor Dec. at ¶ 5. Sharon had an eighth grade education and grew up in
extreme poverty in Appalachian Kentucky. Because she was so young when she married, she had
no idea how to be a wife and mother. Barbara Jo Pryor Dec. at ¶ 2. She did not know how to cook,
clean, or take care of herself, let alone two children. Id. Sharon drank a lot, and she was likely
drinking while pregnant with Eric. Pryor Dec. at ¶ 4. Sharon was an alcoholic who “was drunk
more often than she was sober.” Nosko-Passmore Dec. at ¶ 4. The environment in the home was
deplorable and chaotic. Pryor Dec. at ¶ 13. “The kids were neglected terribly.” Pryor Dec. at ¶ 10.
Sharon would leave Eric lying in his crib unattended for hours. C. Branch Dec. at ¶ 3. She left him
for so long that his head flattened. Sharon left the house dirty. The kids were dirty and just ran
around in diapers. Pryor Dec. at ¶ 10. On another occasion, when Eric was about 18 months old,
his aunt came over to find Robert running around in a diaper and Eric left in a filled sink. Pryor
Dec. at ¶ 10. Sharon was passed out in her room. Pryor Dec. at ¶ 10.
Neal was incredibly violent with his wife and children. He had a reputation in the
community for being a “raging, violent, alcoholic.” D. Branch Dec. at ¶ 3; see also Bickel Dec. at
¶ 2; Pryor Dec. at ¶ 7. Neal could not function without being drunk. R. Branch Dec. at ¶ 12. He
also used drugs. D. Branch Dec. at ¶ 3. One of Eric’s childhood friends described Neal as “the
most despicable person [he had] ever met.” Bickel Dec. at ¶ 2. Neal beat Sharon during both of
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her pregnancies. Dee Eval. at 10. He fought with Sharon often, not caring if they were in front of
the children. Robert and Eric were only toddlers, and the fights scared them. The boys would
huddle in the corner, terrified. Dee Eval. at 10. When Eric was three, Neal threw Sharon to the
ground and stomped on her right in front of him. Dee Eval. at 10. He beat Sharon so badly that she
needed to be taken to the hospital on multiple occasions. One time, he punctured her kidney, and
she had to have it removed. Pryor Dec. at ¶ 7. Neal Branch would sometimes beat his wife and
After a few years, Neal and Sharon divorced. Eric was still a toddler. Dee Eval. at 4. After
the divorce, Sharon took the kids to Neal’s parents, Alfred and Marcille Branch, and she moved
back home with her own parents. Alfred and Marcille took care of the kids while Sharon tried to
get back on her feet. Neal moved away to Arizona. While there, he went to prison for beating his
new wife. R. Branch Dec. at ¶ 5. One of Eric’s first memories of his father is seeing Neal in
handcuffs at the courthouse in Phoenix. Dee Eval. at 5. Neal was in prison before returning to
Indiana. During that time, “Eric’s mother was completely absent from his life. His father was in
prison out of state. He had no love or support from either of his parents.” Melton Dec. at ¶ 3. One
Eric never stood a chance in life. Eric’s father was a real piece of shit. He was a
physically abusive alcoholic. Eric’s mother for all intents and purposes abandoned
him. Eric’s grandparents were very nice but completely ill-equipped to take care of
him. Their lack of discipline, rules, and consequences proved to be disastrous for
him. Eric received no structure, routine, direction, or guidance from anyone.
Greene Dec. at ¶ 2.
When Neal returned to Indiana, he moved onto his parents’ property. By the time Eric was
in kindergarten, the boys were living with their father. R. Branch Dec. at ¶ 13. Neal was incredibly
violent with his children. Neal beat them even when they were toddlers. R. Branch Dec. at ¶ 7. He
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would punch Eric and slam him into the concrete when Eric was just a young child. Id. Eric would
have black eyes, bruises, and busted lips. Bickel Dec. at ¶ 4. Robert explains, “We were whipped
in a manner far beyond what any child would ever deserve.” R. Branch Dec. at ¶ 7. “[I]t happened
Neal was particularly violent with Eric. “He would grab, beat, and hit Eric with whatever
he could get his hands on. He would grab him by the hair, punch him in the face, and slam him to
the ground. He beat Eric like he was a full grown man, even when Eric was a small child.” R.
Branch Dec. at ¶ 8. Eric would sometimes try to run away from the beatings, and Neal would just
chase him out into the yard and continue the beatings there. Id.
When Eric was only five, he went running to a neighborhood friend for escape. As Jay
Bickel describes:
During the blizzard of 1976, when Eric was about five, he ran to my house barefoot
in the snow covered in blood. Neal had beaten him in the face and head severely.
Eric’s face was totally swollen. He looked like he had been in a boxing match with
a prizefighter. He was beat so severely that some of his teeth were loose.
Bickel Dec. at ¶ 7.
In addition to the violence, Neal was negligent toward his children. At six, Robert was in
charge of caring for himself and Eric. He had to get both of them up, dressed, and ready for school.
R. Branch Dec. at ¶ 7. There was no structure or parental figure. Eventually, the kids went back to
A large part of Neal’s ability to get away with this violence and neglect was his family’s
prominence in the community. Unlike Sharon’s family, Neal’s family had some money. Neal was
“a spoiled brat whose family owned a restaurant, motel, and gas station in town.” Declaration of
Dixie Davis at ¶ 2. Neal’s parents, Marcille and Alfred, had a history of bailing Neal out of
situations when he got into trouble. They did so even when he was violent toward them. They
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didn’t report him when he punched Alfred and stole $5,000 from him. R. Branch Dec. at ¶ 3. Neal
did not have to learn accountability. Neal would get arrested for the abuse, but nothing ever came
of it. Bickel Dec. at 6. Alfred would pull strings to make the charges go away. Id. As a result, Neal
was self-centered and never took responsibility for his actions. R. Branch Dec. at ¶ 2. Shortly
before Alfred’s death a few years ago, Alfred admitted to Eric’s brother, Robert that his biggest
regret was not making Neal accountable for his actions. R. Branch Dec. at ¶ 3. Alfred would later
Sharon married Doug McMurtry when Eric was still in elementary school. McMurtry Dec.
at ¶ 1. Eric and his brother moved out of their grandparents’ house and back in with their mom and
new stepfather in Lynnville, Indiana. R. Branch Dec. at ¶ 14. The change in environment was
drastic. While Alfred and Marcille were financially stable, Doug and Sharon had almost no money
and could not meet Eric and Robert’s basic needs. They could not even keep the heat on, and the
family started using food stamps. R. Branch Dec. at ¶ 18. The four of them lived in a singlewide
trailer, and Eric and his brother shared a room. D. Branch Dec. at ¶ 5. Eric had become accustomed
to being able to keep up with the latest trends at school, but he was no longer able to do so once
he moved back home with his mother. R. Branch Dec. at ¶ 17. From as far back as Robert could
remember, his little brother was obsessed with being cool. R. Branch Dec. at ¶ 21. It was much
more difficult to do so in Lynnville without any money. Eric was desperate to fit in and be popular,
so he started showing off to try and get attention. Eric had such a hard time with the transition that
he failed and had to repeat the third grade. R. Branch Dec. at ¶ 19-20; Dee Eval. at 5.
Making matters worse, Eric had a very tense relationship with his stepfather. Life with his
grandparents meant almost no discipline. Eric was used to Neal not caring and letting the kids run
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wild, so Eric “didn’t know how to live with rules and couldn’t listen.” Davis Dec. at ¶ 5. Doug had
a military background and was extremely strict. R. Branch Dec. at ¶ 14. Doug expected the children
to earn everything, including their dinner. Eric once reported, “You got the feeling you had to earn
your meals even in the 3rd grade.” Dee Eval. at 6. Doug took a hard labor approach to discipline,
and when the boys misbehaved, Doug would make them do strenuous physical activity for hours
on end. Robert had to chop wood for 12 hours straight one night, R. Branch Dec. at ¶ 15, and Eric
was left outside all night pulling weeds. Dee Eval. at 11. Robert quickly fell in line to avoid this
discipline as much as possible. Eric was unable to control his emotions and actions, so he continued
to get in trouble, further worsening his relationship with Doug. Robert tried telling Eric to just do
as Doug said, but Eric could not figure out how to stay away from Doug’s wrath.
Eric’s tense relationship with Doug affected his relationship with his mother and brother.
Eric felt that Sharon chose Doug over him. Nosko-Passmore Dec. at ¶ 4. Robert got into trouble
less often, so Eric felt that his mother loved Robert more than him. He felt like she favored Robert
over him and started to resent his brother for their mother’s attention. R. Branch Dec. at ¶ 22.
Others could tell by the family’s interactions with each other that there was validity to the way
Eric felt. Greene Dec. at ¶ 6; McMurtry Dec. at ¶ 5; Nosko-Passmore Dec. at ¶ 4. “Robert was the
chosen one. Eric was the black sheep.” Id. Because of this, Eric developed a low self-esteem. R.
Eric had difficulty controlling his emotions. He would go into fits of rage where he would
destroy furniture. He threw tantrums, even when he was far too old to be doing so. R. Branch Dec.
at ¶ 23. He did this all the time. Id. He would “kick, scream, punch walls, and break things. Id. His
emotions overwhelmed him, like they do with little kids.” Id. He could not stand being told no and
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would go into rages. McMurtry Dec. at ¶ 3. He could not control his impulses and “acted like a
Sharon started having difficulties with her emotions too. Around the time that Eric was in
5th grade, his mother had a tubal pregnancy that terminated after a miscarriage. Dee Eval. at 6.
Sharon was depressed about losing her baby and started having sudden mood swings. She would
seem happy and then suddenly be distant and withdrawn. She would go through weeks of
depression at a time.
In seventh grade, Eric started drinking to cope with his feelings. He would skip school and
go to the woods to drink beer and whiskey. The family would throw huge parties on the weekends.
R. Branch Dec. at ¶ 26; McMurtry Dec. at ¶ 6. There would be a lot of people over, and both
Sharon and Doug would get drunk. Id. Robert and Eric would steal some of the alcohol and slip
off into the woods to drink it. Id. The boys started drinking as much as they could, whenever they
got the chance. Id. As the two boys got older, it got easier for them to find alcohol. Id. at 27. They
would have “epic drunk fests,” where they would drink until they passed out. Id. at 27.
Eric and Robert’s instantaneous penchant for alcohol was no surprise given the family
history. Sharon’s grandfather was an alcoholic, and her father was a binge drinker. Phillips Dec.
at ¶ 6. Sharon and her sister Dixie struggled with drugs and alcohol. Id. Her brothers, Jimmy and
Desperate for some kind of attention, Eric started getting increasingly reckless. He would
ride his bicycle along a two-story railing with nothing but a mattress on the ground to break his
fall. R. Branch Dec. at ¶ 31. He climbed a thirty-foot-high building and jumped off it into piles of
sand. Id. He had a bad motorcycle accident when he was only thirteen or fourteen. Id. at 32. Robert
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describes that his brother was “fueled by adrenaline.” Id. at 32. Between Neal’s beatings and Eric’s
many accidents, his brother thinks Eric had “countless concussions.” Id. at 34.
Then, Eric’s life changed suddenly when he was in middle school and the family took a
vacation to Gatlinburg, Tennessee. Eric saw a cassette tape that he wanted and impulsively grabbed
it. He changed his mind before leaving the store and put the tape back, but the store security guards
had already seen him. They stopped him on the way out, and his family found out what happened.
Doug was furious. He said that a thief would not live in his house. As soon as the family got back
to Indiana, they dropped Eric off at Neal’s house. Doug pulled Eric’s clothes out of the suitcase
and threw them on the porch. Sharon, Doug, and Robert drove off without him.
To Eric, this was the ultimate act of abandonment by his mother. His brother got to go
home with their mother, while he was left with an alcoholic, abusive father. He was hurt that his
mother and brother had not even stood up for him. Dee Eval. at 7.
C. In high school, Eric Branch began to self-medicate with alcohol and acted in
reckless and impulsive, “childish” ways
When Eric moved back in with Neal, his father had no interest in taking care of him. Neal
would leave some money for Eric and then disappear for days at a time. Dee Eval. at 7. After six
months, Eric wanted to return home to his mother, but Doug refused. His grandparents lived next
door to Neal, so Eric spent most of his time staying there with them. At his grandparents’ house,
Eric did not have any structure or discipline. D. Branch Dec. at ¶ 6. Instead, his grandfather started
making excuses for Eric just as he had with his own son, Neal. Id. As a young teenager, this was
the time when he needed structure most. However, as his cousin Alex reports, “My grandparents
did not give Eric any consequences for his actions. This contributed to Eric’s immaturity and
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By the time Eric was a teenager, he felt completely rejected by his family. He became even
more desperate to get attention and acceptance from his peers. He had no emotional support from
his family. O’Brien Dec. at ¶ 3. Eric’s relationship with his grandparents “was like, here is a bed
and here is the fridge, now take care of yourself.” Id. They were barely even home. Id.
Eric’s lack of familial support affected his decisions. “The abandonment of his parents and
lack of structure in Eric’s life largely played into his personality. Eric had the pathological need to
be accepted and liked by all.” Greene Dec. at ¶ 9. He had to be the center of attention. O’Brien
Dec. at ¶ 5. Eric would “act goofy, tell jokes and stories, or take any type of bets or dares to
monopolize the attention.” Id. For Eric, “attention was affection.” Greene Dec. at ¶ 13. He started
hanging out with a wilder crowd. Around them, Eric felt the need to be the daredevil and try to
outdo all of them. Eric also started getting in more trouble at school. Between his father and his
grandparents, Eric had no authority figures at home. He was allowed to do whatever he wanted.
Melton Dec. at ¶ 4. He kept getting into trouble. Dee Eval. at 7. Some of Eric’s childhood friends
started distancing themselves from Eric because they did not like the reckless path he was on.
Eric’s recklessness grew more extreme over the years. He felt the need to outdo everyone
around him. Greene Dec. at ¶ 12. He played chicken while driving cars and started breaking into
buildings. D. Branch Dec. at ¶ 9. Before Eric even had a driver’s license, he took his grandparent’s
car to a rock quarry and drove quickly before locking the car brakes. Melton Dec. at ¶ 7. The car
“skidded to a stop just feet from a one hundred foot drop.” Id. Eric would make “donuts around S
curves in the road, drive far too fast, and spin the tires.” D. Branch Dec. at ¶ 14. He drove a
motorcycle at 150, and even 185, miles per hour. R. Branch Dec. at ¶ 30; Melton Dec. at ¶ 6.
During a family trip to the Ozarks, they went on a whitewater rafting trip. Phillips Dec. at ¶ 5. The
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family was told not to dive off the cliffs because the water was too shallow. Eric climbed to the
tops of the cliffs and jumped off into the water anyway. Id. Alex, Eric’s cousin, now realizes in
retrospect that Eric “felt he was all alone. He felt and acted like he had been abandoned. Eric’s
attention-seeking behavior, his need to be accepted, and his need to be popular were all things he
Eric did not always make it through his exploits unscathed. When Eric was 16, he was
riding on the back of his Uncle Dean’s motorcycle when he fell off and hit his head. Eric was
unconscious for at least five minutes, but nobody took him to the hospital. Dee Eval. at 9.
Eric’s fits from his youth also extended into his teenage years. D. Branch Dec. at ¶ 15. He
acted like a five-year-old when things did not go his way. Id. He would get upset easily and
“seemed unable to accept perceived losses and move on.” O’Brien Dec. at ¶ 7. He had difficulty
controlling his emotions in other ways too. He had a hard time taking anything seriously. R. Branch
Dec. at ¶ 36. He would laugh at inappropriate times, like when he got in trouble. Id.; Greene Dec.
at ¶ 16. It was like he could not control it. This would further infuriate anyone trying to discipline
As a teenager, Eric still suffered through extraordinary violence by Neal. Eric lived with
his father and grandparents, who lived next door to each other, while his brother Robert was in
Lynnville with their mom and stepdad. R. Branch Dec. at ¶ 10. Robert would come to Rockport to
see Eric on the weekends. Each time Robert saw Eric, he was still getting beat up by Neal. R.
Branch Dec. at ¶ 10. Neal would fluctuate quickly between not caring at all about what Eric was
doing and suddenly beating him. R. Branch Dec. at ¶ 11. Robert was around for one particularly
violent beating when Eric was 15. R. Branch Dec. at ¶ 9. Neal beat Eric and pulled out a clump of
his hair. Id. He also broke a lamp over Eric’s head. C. Branch Dec. at ¶ 12. When Neal would start
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beating Eric, Eric would try to escape and run to his grandparents’ house. Neal would follow him
Eric struggled with responsibility. He and his cousin got jobs together at a local drive-in
theater but Eric could not handle minor responsibility. Alex says, “Eric often wouldn’t show up
for his shifts. I would end up having to do his job for him.” D. Branch Dec. at ¶ 16.
Eric’s grandparents failed to hold him accountable at home. Eric and his friends would
come back in time for their curfews but go back out again. Greene Dec. at ¶ 7. This led to Eric’s
inability to understand consequences, whether legal or physical. Id. at ¶ 13. Robert Greene, a high
school friend, remembers that one time Eric drove a group of them to a high school football game.
Greene Dec. at ¶ 15. Eric was pulled over by a state trooper and received a speeding ticket. Before
even getting out of eyesight of the trooper, Eric tore up the ticket and threw it out the window.
Robert Greene told Eric that he could not do things like that, but Eric did not understand. See also
Melton Dec. at ¶ 8 (describing how Eric and his friends threw corncobs at a police car and, when
caught, the other kids went running away but Eric ran right toward the officer).
Eric continued to drink heavily. He and his friends drank daily if possible. O’Brien Dec. at
¶ 8. Eric would drink cases of beer and whiskey. Id. He drank to the point of blacking out multiple
times. Id. A friend of Eric’s says his “goal was to get as fucked up as possible.” Id. at ¶ 9. Eric
would drink Purple Passion, a malt beverage. When it was halfway done, he would fill it with a
half pint of Everclear, a pure grain alcohol that is 190 proof. Id. Eric also experimented with LSD
When Eric was 15, he and a friend went to a fraternity party at Indiana University. Melton
Dec. at ¶ 10. Eric got “absolutely smashed drunk.” Id. Eric vomited in the bathroom before falling
down a flight of steps while sitting in a wheeled desk chair. Id. at 10, 12. He lay motionless at the
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bottom of the steps for quite a while. When Eric got up, he suddenly became overwhelmed by his
emotions and broke down crying. He told the fraternity brothers at the party about the abuse he
was going through at home and asked them to start beating him. “Some of the fraternity brothers
were so disturbed” that they called the police. Id. at 11. People from social services were at Eric’s
As a young teenager with no support or guidance, Eric started to get into legal trouble.
When he was 14, he and some friends got a set of janitor’s keys for the school. They did it because
they were bored. O’Brien Dec. at ¶ 13. They went in at night to goof around, and a fire started.
Eric and the other boys were charged with arson and theft. Eric was sent to the Indiana Boy’s
School. Upon his release, Eric was withdrawn and depressed. He started drinking heavily and
experimenting with marijuana and other drugs. Eric told his mother, “Do you know what happens
to boys in here?” His mother believed that Eric had been sexually assaulted. His juvenile probation
officer at the time also suspected that Eric had suffered from sexual abuse. Dee Eval. at 11.
When Eric started having legal problems, his grandfather reached out to attorney Verdelski
Miller. Verdelski found that Eric was impulsive and lacked any ability to gauge the seriousness of
his legal problems. There was no forethought or sinister intent, but Eric would react without
thinking and could not understand consequences. Even in his late teens, Verdelski observes, Eric
“had the mentality of a twelve year old.” Miller Dec. at ¶ 6. Eric was referred for therapy at
Southern Hills Counseling Center in 1987. The clinician there noted that he “appear[ed] immature
D. A bright spot in Eric Branch’s life was his relationship with Leora Nosko-
Passmore, and it ended in sadness and loss
Eric finally found some positivity in his life when he started dating Leora Anne Nosko-
Passmore (then Leora Nosko or Annie Nosko). To this day, Leora describes Eric as her soulmate.
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Nosko-Passmore Dec. at ¶ 1. When the two first started dating, Leora and Eric would talk on the
phone for hours. Id. at ¶ 3. Eric would tell Leora about how “hurt he felt by not being loved by his
family, not fitting in, and not being accepted.” Id. His “abandonment” was palpable. Id. He also
told her about Neal’s violence over the years. Eric told Leora that Neal only paid him any attention
when Neal was beating him; otherwise, “Neal had nothing to do with Eric.” Id. at ¶ 6. Leora
Leora’s father was also physically abusive. Id. at ¶ 9. Eric would talk her through the hard
times and encourage her to stand up to him. Leora explains, “In many ways Eric liberated me from
my father.” Id. Eric would stand up to Leora’s father too. One time, Leora’s dad blocked Eric on
the road and tried to beat him up. They got into a fight. When Eric got back to Leora that night, he
While Eric was happy about his relationship with Leora, he was still going through a lot in
other aspects of his life. Leora’s mom, Laura Chubick, allowed Eric to come stay with them for a
while. Laura Chubick Dec. at ¶ 2. Laura did not actually like that Eric was dating her daughter,
but she allowed it thinking she could keep a better eye on them. Chubick Dec. at ¶ 8. He was
overjoyed at being invited to do simple family things, like attend the Easter church service with
them. Chubick Dec. at ¶ 7. Eric “loved being included in the family environment. He needed
affection and was longing for somewhere to fit in.” Chubick Dec. at ¶ 7. While Laura’s
acquiescence in Eric’s relationship with her daughter and later invitation to him to come stay with
them was “begrudging,” she realizes in hindsight that “Eric’s relationship with my family was of
utmost importance to him.” Chubick Dec. at ¶ 8. Indeed, Eric told Leora that she and her mother
“were the only people who ever truly love or cared for him.” Id. “We were all he had,” Leora
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Laura tried giving Eric some guidance herself, encouraging him to get a job and giving him
the gas money to do so, but Eric was incapable of keeping things together. Chubick Dec. at ¶ 4.
Laura remembers, “He was unable to reason the way a person of his age should. He was always
just going here and there aimlessly.” Chubick Dec. at ¶ 5. Eric was still having problems
controlling his actions and getting into trouble. Leora and her mother were going through a difficult
time with Leora’s own violent father, and they moved with Eric into Leora’s grandmother’s house.
Nosko-Passmore Dec. at ¶ 7. Leora’s mom asked Eric to help around the house, but he could not
do it. Chubick Dec. at ¶ 6. One night there was a huge snow storm coming, and Eric said he was
taking Leora to the next town over. Id. Leora’s mom asked Eric to have Leora home by a certain
time to get home safely before the storm. Id. Not only did they not return home on time, but Eric
had actually taken Leora to another town about two hours away. Id.
Leora noticed Eric’s immaturity herself. He was not goal-oriented. Nosko-Passmore Dec.
at ¶ 12. He would brag about doing juvenile things like skipping school and encouraged her to do
the same. Id. Whenever Eric made any money, he would go on shopping sprees and spend it all
right away. Id. at 14. Once, they went to visit his cousin Alex in Panama City Beach. Nosko-
Passmore Dec. at ¶ 13. Leora thought the trip was planned, but she found out once they were there
that Eric had not even told Alex they were coming. He just decided to go spur of the moment. Id.
Eric was unable to think out the consequences of his actions and acted recklessly around
Leora. One time they were in the car with one of her friends when they got into an argument. Id.
at ¶ 15. The friend was driving down the highway, and Eric, out of anger, reached over and threw
When Leora was fifteen, she got pregnant with Eric’s child. Nosko-Passmore Dec. at ¶ 2.
Eric desperately wanted a family, and now he would have the opportunity to have one of his own.
16
However, one night when he and Leora were having one of their rough patches, Eric went to a
party with some friends. IN Tr. at 21. They met a couple girls. Id. Eric thought that one of the girls
liked him, so he took her on a moped ride to a more isolated spot. Id. at 21-22. He pushed her
down and touched her breast before realizing that she did not want to go any further with him. Id.
at 23. Eric was convicted of sexual battery, a class D felony in Indiana. The judge sentenced him
to three years in prison with one year suspended. Eric was sent to Rockport Detention Center, an
adult prison.
While incarcerated, Eric kept in touch with Leora about their baby girl, Nicole. They
decided they would give her up for adoption but, wanting to stay in touch with her, would try an
open adoption. Through the help of a minister, they located a stable family out in Washington to
adopt Nicole. Eric wrote Leora from prison encouraging her that this was the best thing for their
Eric was devastated over the loss of his daughter. Nosko-Passmore Dec. at ¶ 2. He blamed
Leora for giving their baby away, even though he had fully supported their decision while she was
still pregnant. Id. at ¶ 11. Leora describes, “The most angry and emotional I ever knew Eric to
become was when I tried to break up with him over the phone after the adoption of our daughter .
. . .” Id. at ¶ 10. This was an emotional time for Leora, too, but in his own anguish, Eric blamed
In addition to the strain over the adoption of their baby, Leora noticed that Eric was
drinking more than he ever had before after his release from jail. He drank “to medicate.” Id. at ¶
18. He was also angrier and moodier. Leora wondered what was wrong, and Eric opened up to
Leora about his time in R.D.C. Eric was very small for his age, so it was difficult for him to be at
an adult prison. Id. at 16. While at R.D.C., he had been held down by a group of men and brutally
17
gang raped. This experience caused Eric to go “to very dark places.” Id. at 16. While Eric had been
impulsive and made stupid decisions before he went to prison, Leora reports, “I had never seen the
rage in Eric like he had after getting out of prison.” Id. at ¶ 17.
Eric decided to leave Indiana and go to Panama City Beach where Alex was attending
college. Leora joined Eric for about a week, but she ultimately decided to go back to Indiana. She
broke up with Eric one final time. Eric was heartbroken once again. Alex had hoped that, once
Eric got to Florida, he would start taking things seriously, get a job, and start attending the same
college Alex attended. D. Branch Dec. at ¶ 17. Instead, Eric started going to clubs every night,
partying, and drinking. A few weeks later, Eric found himself facing the most severe legal trouble
E. In his extended adolescence, Eric Branch was plagued by his immaturity and
failed to understand the trouble he faced, even when on trial for his life
When Eric arrived in Florida, he was an immature, child-like boy who struggled to grasp
reality. He had been erroneously released from prison in Indiana early but moved to Florida with
his cousin by the time anyone realized it. His lawyer, Verdelski Miller, contacted Eric to come
back to Indiana to clear things up. The lawyer explained that it was not Eric’s fault, so he would
not have gotten into any trouble. Eric still did not understand. He told Verdelski that he would deal
with it later. He did not grasp the urgency in getting it resolved quickly. Miller Dec. at ¶ 7.
After his crimes in Florida, Verdelski arranged Eric’s surrender in Indiana. Once again,
Eric did not grasp how much trouble he was in. Even after Eric was in jail in Florida, he did not
realize the seriousness of his charges. Verdelski traveled to Florida multiple times with Alfred
Branch to visit Eric at the jail. Eric did not understand why Verdelski had not gotten him out on
18
Robert, Eric’s brother, testified during both phases of the trial. He knew that Eric did not
understand the gravity of the situation. R. Branch Dec. at ¶ 40. Eric could not grasp that he was on
trial for his life. Burns Dec. at ¶ 4. There were news cameras at the trial, and Eric was distracted
by the cameras instead of paying attention to the witnesses. Id. He bit his lips a lot and kept fixing
his hair. Id. When Eric testified, he was completely calm and did not realize how he was coming
across. Id. at ¶ 6. He did not interact with his attorney or try to assist in his defense. Id. at ¶ 5. He
was used to his grandfather getting him out of trouble, so Eric thought that would happen again.
Observers said, “Given how he was acting at trial, it was so clear that he did not understand the
magnitude of what was going on around him.” Burns Dec. at ¶ 5; see also R. Branch Dec. at ¶ 40.
Faye E. Sultan, Ph.D., explains that there is a “new mental health professional consensus
that brain development continues into the twenties.” Sultan Report at 17. According to James E.
Garbarino, Ph.D., “our science now recognizes that the cut-off of 18 years is arbitrary, and not in
accord with the current understanding of the scientific community.” Garbarino Report at 1.
“[H]uman brain maturation is ordinarily not complete until the mid-20’s . . . .” Id. at 2.
19
Sultan Report at 21 (emphasis added). Dr. Sultan explains that, “[s]ignificant development of “the
pre-frontal cortex area of the brain” also continues “until at least the mid-twenties.” This is the
region of the brain where “executive functions are developed,” meaning that executive functioning
skills—the skills to “assess risk, think ahead, set goals, and plan ahead” and “[c]omplex planning,
the ability to focus on one thing while ignoring distractions, decision-making, impulse control,
logical thinking, risk management, organized thinking—are not fully developed until a person’s
mid-twenties.” Id.
“This new mental health professional consensus was not available during previous
proceedings in the case of Eric Branch. This new mental health professional consensus has real
consequences in the case of Eric Branch.” Sultan Report at 16. Dr. Sultan concluded that—based
on her assessment of Mr. Branch and on the new scientific information—“Mr. Branch, at age 21,
Dr. Sultan and Dr. Garbarino explain that this knowledge about the development of an
adolescent brain, like that of Mr. Branch, is new science. Sultan Report at 21-22; Garbarino Report
at 2-3. “The new professional mental health consensus about the developing human brain in the
case of a twenty-one-year-old, such as Eric Branch, was not available to the experts who assessed
this case in the past.” Id. See also Garbarino Report at 1 (“[T]he current scientific understanding
of adolescent brain development was not available during earlier proceedings in Eric Branch’s
case.”). When Dr. Henry Dee assessed Mr. Branch, “the science of brain development had not
progressed to the point where [Mr. Branch’s psychological] problems could be recognized for what
Mr. Branch’s prior counsel, S. Douglas Knox, confirms that the science about Mr. Branch’s
immature brain was not available to him when he represented Mr. Branch.
20
This science did not exist at the time I represented Eric or beforehand. It explains
Eric’s immature behavior before and at the time of the offense and during the trial,
and his subsequent maturation by the time I came to represent him. Eric was 21 at
the time of the offense.
Had this new scientific understanding in the mental health professions been
available to me during the time I represented Eric, I certainly would have used it. I
would have litigated that his death sentence was unconstitutional and that he should
not be executed due to the lack of moral culpability related to his immature level of
functioning.
Knox Dec. at ¶ 3-4. The instant submission is the first opportunity Mr. Branch has had to challenge
the constitutionality of his death sentence based on the medical consensus that at the age of 21,
after a lifetime of trauma (including abuse, neglect, and rape) and years of self-medicating with
alcohol, his brain was not fully developed; like seventeen-year-olds, he had diminished moral
culpability, and his execution would serve no penological purpose. Garbarino Report at 4 (“An
individual such as Eric Branch should not be considered eligible for imposition of the death
G. Mr. Branch has matured into a reflective man and an engaged father while
incarcerated
Mr. Branch has matured and worked hard to better himself as he grew up while
incarcerated. He received a certificate in paralegal studies. See Blackstone School of Law, Legal
Assistant/Paralegal Certificate, for Eric Branch (March 4, 1996). He spends much of his time
helping fellow prisoners. His disciplinary record has been exemplary. Mr. Branch has worked hard
to build the familial connections he was unable to have earlier. Mr. Branch has stayed in touch
with his daughter, Niki. He sends her letters and artwork regularly. Niki is a talented artist, and
Mr. Branch encourages her in her art. He has also maintained relationships with much of his
family, including his aunt, cousin, and brother. He has reunited with Leora, and remained an
important factor in her life. He cherishes these relationships he has maintained through the years,
21
at one point telling his cousin “The love and connection I share is what defines me. In my own
clumsy way, I have tried to teach Niki this life lesson. The people who love us and who we love –
even if they do drive us nutty – it is these relationships that give life meaning.” Excerpts from Mr.
Branch to Leora Nosko-Passmore; his grandmother; his aunt, Connie Branch; and his cousin, Alex
II. Mr. Branch’s lengthy incarceration on death row and troubling experiences with
Florida’s capital punishment system
Since Mr. Branch’s arrest, the entire history of his representation is a tragic story of the
funding shortfalls of state defender agencies, a failed pilot registry attorney program, conflicts of
interest, and legal abandonment by those who were supposed to be his advocates. Underlying this
history are years of letters Mr. Branch sent to his loved ones documenting the profound stress he
was going through during his lengthy incarceration – years waiting to die while on death row.
Mr. Branch’s series of inexcusably inadequate attorneys started at his trial. As discussed
previously, in Indiana, the family relied on a local attorney, Verdelski Miller, who had extensive
contacts within the community. When they learned of Mr. Branch’s charges in Florida, Verdelski
and Mr. Branch’s grandfather, Alfred, traveled to Pensacola in the hope of finding someone who
Having never been involved in a capital trial before, Alfred and Verdelski were
unknowingly and woefully underfunded. Alfred offered a flat fee of $15,000 to anyone who would
take his grandson’s capital case. Alfred hired the one lawyer who agreed to this low-budget
Alfred quickly became disillusioned with Mr. Allbritton’s performance. He pleaded with
Mr. Allbritton to hire experts and a mitigation specialist. It was not until February 2, 1994, a month
22
before the trial, that Mr. Allbritton hired a mitigation specialist, Saundra Morgan. In February of
1994, approximately one month before the trial was to start, Alfred submitted an affidavit
conveying his complaints about Mr. Allbritton’s performance, including that Mr. Allbritton had
met with Mr. Branch once, for five minutes; that Mr. Albritton had only met with two members of
the family, Alfred and Marcille, for just an hour and a half; and that Mr. Branch had been declared
partially indigent, so Alfred and Mr. Branch expected the legal team to include an investigator, a
Finally, Alfred became so frustrated that he appeared in court and demanded to speak to
the Court himself on March 1, 1994, a week before the start of the trial. He wanted to discuss the
affidavit he had submitted about Mr. Allbritton’s performance. The Circuit Court told Alfred there
was nothing it could do, as Alfred had retained Mr. Allbritton. R. 154-56.
After Alfred’s appearance in court, Mr. Allbritton finally went to meet with Mr. Branch.
Other than the brief five-minute introduction in October, this was his first meeting with his client.
On February 23, 1994, Ms. Saunders sent Mr. Allbritton an update on her progress in Mr.
Branch’s case. She informed Mr. Allbritton that her investigation would take at least another five
weeks “to prepare a basic social history” to provide to experts. Mr. Allbritton sought a continuance
on February 28, 1994, which was denied. About a week later, Mr. Branch was found guilty of first-
degree murder. On March 11, 1994, the day the penalty phase was to start, Mr. Allbritton informed
this Court he was not ready to proceed and moved for a continuance. The request was denied,
prompting Mr. Allbritton to initially waive the penalty phase before hurriedly deciding to present
23
B. Mr. Branch’s legal woes continued into his state post-conviction when his post-
conviction team, while initially competent, was disbanded by the Legislature’s
defunding of CCRC-North
The mandate in Mr. Branch’s case was issued by the Florida Supreme Court on February
7, 1997. PC-R. 213. His conviction became final on May 12, 1997, when the United States
Supreme Court denied certiorari review. Branch v. Florida, 520 U.S. 1218 (1997).
Although Mr. Branch’s post-conviction case fell under the jurisdiction of the Office of the
Capital Collateral Counsel for the Northern Region (“CCRC-N”), he was without designated
counsel from the date the mandate issued in February 1997 until October 1, 1998. Id. On May 7,
1998, CCRC-N filed a “shell” 3.850 pleading in the trial court. PC-R. 137-200. The “shell” motion
was filed because CCRC-N was “unable to designate counsel to represent Mr. Branch and prepare
and file his Rule 3.850 motion.” PC-R. 137. The pleading also stated that “Mr. Branch is being
denied his right to counsel, due process and equal protection of the law in pursuing post-conviction
remedies.” PC-R. 138. CCRC-N also filed the incomplete pleading to toll the time to file his
Mr. Branch’s initial, and incomplete, 3.850 motion details the struggles of CCRC-N to
adequately represent death row inmates in North Florida, “[d]ue to the budgetary shortfall CCR
experienced in FY 96-97; the retirement, resignations and dismissal of qualified attorneys from
the CCRC-N; and the reorganization of the former office of CCR into three separate and
1998. PC-R. 213. Mr. Thomas was immediately confronted with the challenges of the newly-
implemented records collection rules in capital post-conviction claims established in Fla. R. Crim.
P. 3.852 and the creation of the records repository of the Secretary of State. Mr. Thomas filed a
24
motion to stay the applicability of the rule and extend the filing deadline established in Fla. R.
Crim. P. 3.852(g)(1) that went into effect October 1, 1998. PC-R. 213. The circuit court granted
the motion PC.R. 220-221, as well as a second motion to extend the filing deadline for Mr.
Branch’s records requests filed on April 21, 1999. PC-R. 227-236. Ultimately, this Court extended
the filing deadline for Mr. Branch’s amended 3.851 motion to April 1, 2003. PC-R. 603.
Mr. Branch was represented by Heidi Brewer and Jennifer Blakeman of CCRC-N from
1999 to 2003. Michael Reiter was the head of the agency and performed a purely administrative
role during that period of time. Ms. Brewer filed an amended 3.851 motion with a request for leave
On May 19, 2003, the Florida Legislature voted to terminate funding of CCRC-N. CCRC-
N’s representation of Mr. Branch officially ended on July 1, 2003, when CCRC-N was eliminated
as an agency. In its place, the Legislature instituted an experimental registry attorney program to
represent death row inmates in their post-conviction claims in North Florida. CCRC-South and
CCRC-Middle remained open. The registry of death penalty lawyers was a pilot program or
experiment in the northern region of Florida that sought to assess whether it was more cost-
effective to out-source capital cases to private attorneys on a local registry rather than continue to
send death penalty cases to the regional Capital Collateral Regional Counsel offices in the
Northern, Middle and Southern regions. Fla. Stat. 27.702(4)(b). The registry program allowed
payment to only one attorney with no oversight as to their level of post-conviction experience in
capital cases or the quality of their representation. A $15,000 cap was allotted for investigation
upon approval of the court, the same allotted for expenses, copying costs, and expert witnesses
upon approval of the court. Registry counsel had no control over whether the court would approve
necessary costs. Registry counsel had to front the money for the costs of travel and experts for an
25
evidentiary hearing. The JAC, which provided payments, could delay payment, challenge funding
requests, or withhold fees. The only time registry counsel could get paid is when certain pleadings
were filed, whether or not it was in the client’s best interest to file them.
Ms. Brewer declined to represent Mr. Branch as his registry attorney, citing the statutory
caps for fees and case expenses. On June 20, 2003, Michael Reiter filed a motion to have himself
appointed as Mr. Branch’s registry attorney under §§ 27.7001, 27.710 and 27.711. PC-R. 861-864.
He represented to the Circuit Court that he had been Mr. Branch’s designated counsel at CCRC-
N. PC-R. 861. This was not quite accurate. Mr. Reiter also wrote that “[s]ince counsel is familiar
with the facts, circumstances and challenges with Mr. Branch’s convictions and sentences and has
met with Mr. Branch several times to discuss his case, Mr. Branch approves of Mr. Reiter’s
continued representation.” PC-R. 862. Despite Mr. Reiter’s representation of Mr. Branch’s
consent, Mr. Branch in fact objected to Mr. Reiter’s appointment and the Circuit Court held a
hearing on Mr. Reiter’s motion on July 14, 2003. PC-R. 865-876. Assistant Attorney General
Cassandra Dolgin appeared on behalf of the State, and she voiced her own concerns about Mr.
Reiter representing Mr. Branch as registry counsel. She reported that Mr. Reiter requested that she
set up the phone conference “because all he had was a cell phone, and obviously being in private
practice, there are going to be some expenditures out of pocket.” PC-R. 869. Ms. Dolgin was
concerned about Mr. Reiter’s ability to front the cost of Mr. Branch’s post-conviction case.
However, the Circuit Court appointed Michael Reiter to serve as Mr. Branch’s registry counsel,
over Mr. Branch’s objections and the concerns of the assistant attorney general. PC-R. 877.
Ms. Dolgin’s concerns were legitimate and foreshadowed of Mr. Branch’s struggles over
the next several years. If Mr. Branch had been represented by a CCRC office, he would have had
access to, at least, two qualified attorneys assigned to his case, one investigator, support staff, a
26
paralegal and research assistance. CCRC retains the right to hire any expert necessary to defend
the case without court approval or disclosure. The agency controls its own budget, including
attorney salaries, guaranteeing them a monthly paycheck. Mr. Reiter was a sole practitioner,
worked out of his garage, and his practice was limited to appointments from the registry.
Mr. Branch later detailed his conflicts with Mr. Reiter in his pro se Motion for Appointment
of Conflict Counsel and Leave to Amend Habeas Corpus filed August 2, 2007 in the United States
District for the Northern District of Florida, infra. As soon as Mr. Reiter was appointed, Mr.
Branch requested that Mr. Reiter file a motion to exceed the fee cap in his case. Mr. Branch was
aware that the meager fee and litigation expense caps were completely inadequate for the
magnitude of investigation and preparation necessary for success in his post-conviction case. Mr.
Reiter eventually filed the motion on the eve of Mr. Branch’s evidentiary hearing. Although Mr.
Branch was never provided an order on the motion, Mr. Reiter told him the Circuit Court had
denied the funding. (Undersigned counsel has conducted a diligent review of the post-conviction
record on appeal and has been unable to locate record evidence that Mr. Reiter filed such a motion.)
Mr. Reiter also refused Mr. Branch’s numerous requests to file a constitutional challenge
to the pilot registry program in his 3.850 motion or his subsequent appeal to the Florida Supreme
Court. Mr. Reiter depended on the registry program for his livelihood, creating an apparent
conflict.
An evidentiary hearing was held the week of April 26, 2004. At the start of the hearing,
Mr. Reiter told the Court, “I do want to mention that . . . you have seen the witnesses are quite
extensive and for the purposes of the record, . . . [some] we have found and because of financial
constraints were not able to appear. Not being CCR anymore, we don’t have the money up front.”
PC-T. 8. Mr. Reiter did not make any other requests following that revelation. The Circuit Court
27
issued its Order Denying Defendant’s Motion to Vacate Judgment and Sentence on March 4, 2005.
PC-R. 1591-1616. On August 31, 2006, the Florida Supreme Court affirmed the order and also
denied Mr. Branch’s petition for writ of habeas corpus. Branch v. State, 952 So. 2d 470 (Fla. 2007).
C. Mr. Branch’s federal court litigation was marred by a years-long search for
conflict free counsel
On March 28, 2007, Mr. Reiter moved to represent Mr. Branch in his federal habeas
proceedings. Branch v. McDonough, N.D. Fla. No. 4:06-cv-486-RH, ECF No. 8. Judge Hinkle of
the Northern District of Florida granted the motion. ECF No. 10. In a pre-Martinez v. Ryan world,
Mr. Branch filed a pro se motion for appointment of counsel on limited bases to argue conflict of
interest claim. ECF No. 11; see also Martinez v. Ryan, 566 U.S. 1 (2012) (holding that “inadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial”). The State opposed appointment
because “[i]neffective assistance of collateral counsel [was] not a cognizable claim in federal
habeas.” ECF No. 12. The Northern District of Florida denied Mr. Branch’s motion. ECF No. 15.
In the meantime, Mr. Reiter filed a motion to adjust the date of his appointment out of concern for
not getting reimbursed for some of the hours he had worked. ECF No. 16.
After a delay in getting the court’s order denying his request for counsel other than Mr.
Reiter, Mr. Branch wrote the court a letter seeking to clarify that he was not asserting ineffective
assistance of collateral counsel, but that he wanted conflict-free counsel. ECF No. 23.
Alternatively, Mr. Branch stated, “Since there was a state-created bar to raising the issues pro se
in state court, this court should develop and hear each.” Id. Mr. Branch explained, “There are some
serious issues in play, with life and death implications that must be answered. And while I can
28
write a neat motion – even quote law if provided time to find it. But I am not a attorney [sic] and
On August 2, 2007, Mr. Branch filed another motion for appointment of conflict counsel
and leave to amend habeas corpus. ECF No. 21. In that motion, Mr. Branch more clearly laid out
the conflict of interest points relating to Mr. Reiter’s representation of him in his § 2254 petition.
Id. His motion was based on his desire to challenge the failed registry system and the problems he
had with Mr. Reiter’s conflict during his state court proceedings. Id. The District Court ultimately
would deny the request because of a prohibition on pro se filings by a petitioner represented by
Mr. Branch wrote a letter to the clerk asking about the status of his August 2, 2007, motion.
ECF No. 24. He also filed a motion to stay habeas corpus proceedings until conflict counsel issue
was resolved. ECR No. 27. The district court again declined to review pro se pleadings. ECF No.
26. Mr. Branch filed another motion requesting a ruling on the merits. ECF No. 28. Mr. Branch
wrote,
Here, Petitioner would much rather find these issues presented by counsel.
Certainly, he never wanted to find himself stuck in a position of having to file pro
se motions to protect his appeals. But as he has found himself in that position, with
all do [sic] respect to this court, Petitioner cannot locate a single court ruling
supporting the proposition that when faced with representation by counsel
practicing under a conflict of interest, a petitioner must first provide that attorney a
[sic] opportunity to file a claim against his own self-interest.
Id. The district court denied these motions. ECF No. 29.
Mr. Branch continued to be proactive about finding new representation. In January of 2010,
he told his aunt that he had spent the last month and a half writing letters to lawyers. Branch
Excerpts.
29
The district court denied relief on Mr. Branch’s § 2254 petition on March 30, 2010. Branch
v. McDonough, 779 F. Supp. 2d 1309 (N.D. Fla. 2010). Mr. Branch panicked. He wrote to his
grandmother:
[T]his basically means, unless I can create something, I have about 7 months,
maybe a year of appeals left. After they are gone. Assuming I win nothing than [sic]
it’s up to the governor. It could be a week. It could be 10 yrs after. But he can sign
my warrant at any moment after my appeal expires. And given my case, I assume,
I will be at or near the top of the list.
Branch Excerpts.
On April 27, 2010, Mr. Branch sent his first letter to the American Bar Association Death
Penalty Project begging for help. His letter began: “Sorry to be so blunt but I need an attorney.”
Letters from Mr. Branch to the American Bar Association Death Penalty Representation Project
(hereinafter “Branch Letters to ABA”). His grandmother also reached out to Emily Williams (now
Emily Olson-Gault), an attorney with the ABA’s Project, sending her a copy of Mr. Branch’s
pleadings. See Petitioner’s 1983 Civil Rights Action. This began a years-long struggle by the ABA
After receiving the letters from Mr. Branch and his grandmother, Ms. Olson-Gault reached
out to her Florida colleagues to get a status on Mr. Branch’s case. In a letter describing the ABA’s
Through them we confirmed that pro bono assistance was needed and also learned
about the troubling history of counsel appointments and turnover in Mr. Branch’s
case, including the loss of his CCRC-North team during the now-abandoned
experiment with relying on a registry counsel system, and the replacement of that
team with severely under-resourced counsel.”
ABA Letter.
Mr. Branch filed a pro se motion to amend or alter the judgment. ECF No. 39. Mr. Branch
also filed a motion to hold the notice of appeal in abayance [sic] and grant leave to file amended
30
notice of appeal, ECF No. 38, and for tolling of his deadline to file the certificate of appealability.
ECF No. 37. As he is a prisoner with no income, doing so came at a great cost to him. In a letter
to his grandmother, Mr. Branch explained, “I had to mail 4 copies to the court. That cost me $10.95
as I had to put it in a priority box. Mail cost is killing me . . . . I refuse to simply give up.” Branch
Excerpts.
Mr. Branch wrote the Court yet again notifying the Court of his pro se status. ECF No. 36.
He informed the court that Mr. Reiter was no longer representing him, writing that he was
“examining his options” for retaining a lawyer for his Eleventh Circuit appeal. Id. Subsequently,
the court denied Mr. Branch’s post-judgment motions. ECF No. 45. Mr. Branch amended his pro
After all district court litigation had been completed, Mr. Reiter filed a motion in the
Eleventh Circuit to withdraw from Mr. Branch’s case, in part because he had a conflict since he
was a registry attorney and Mr. Branch was attempting to challenge the registry system. See ECF
No. 73.
On June 22, 2010, Mr. Branch wrote Ms. Olson-Gault to inform her that Mr. Reiter had
requested to withdraw from the case. Branch Letters to ABA. He continued to send her copies of
the pro se motions he was filing in federal court. Id. He wrote, “If you cannot find anyone willing
to help, please let me know. Because with a death sentence hanging over my head, I don’t want to
On April 21, 2011, the Eleventh Circuit denied Mr. Branch and Mr. Reiter’s attempts to
get Mr. Reiter off the case. Mr. Branch continued to write to Ms. Olson-Gault. He wrote, “It’s
getting dire. I gotta have a [sic] attorney or else the 11th Circuit is going to force me to accept
31
representation from a [sic] attorney who informed the court he could not ethically represent me.”
Id.
Mr. Branch doubted Mr. Reiter’s dedication to his appeal. In a letter he wrote at that time,
My lawyer. He does not want the appeal. He is mad that the court won’t let him
quit. In return, he is just tossing something in front of the court trying to get it done
and over. This frightens the hell out of me. His apathy has already wrecked my
appeal. I simply cannot afford more of the same.
Branch Excerpts.
The Eleventh Circuit affirmed the circuit court’s denial of relief. Branch v. Sec’y, 638 F.3d
1353 (2011). Ms. Olson-Gault and the ABA then shifted their efforts to find someone to represent
Mr. Branch in a § 1983 action or file an F.R.C.P. 60(b) motion on his behalf. She explains, “The
hope was to obtain extraordinary relief and reopen post-conviction proceedings so that the claims
that had been abandoned by prior counsel could be fully investigated and litigated for the first
Completely without representation at this point, Mr. Branch filed a pro se certiorari petition
in the United States Supreme Court. He sent Ms. Olson-Gault a copy. Mr. Branch’s sense of panic
Once the Court denies [the petition], as inevitably they will, my name will be added
to the ‘Ready List.’ As a [sic] attorney, I am sure you know what I mean by that.
Once I am on the list, staying there 3 months is normal. Remaining there 3 yrs is
extraordinary. Meaning I have up to 3 months but less than 3 yrs to make something
happen or die.
Branch Letters to ABA. While Ms. Olson-Gault was aggressively trying to find someone for Mr.
Branch, he remained proactive and sent her suggestions of people to contact. See ABA Letter. His
cousin, Alex Branch, sent emails with copies of Mr. Branch’s pleadings to attorneys and
organizations all over the country. See Emails from Alex Branch to Capital Defense Lawyers.
32
On March 5, 2012, the United States Supreme Court denied Mr. Branch’s certiorari
petition. Branch v. Tucker, 565 U.S. 1248 (2012). Mr. Branch immediately started bracing himself
In the next 30 to 45 days I will be placed on the ‘Ready List’ after which the
governor can kill me at any time he wants. A scary thought with the sudden rush to
execute guys down here. Since last I wrote, they killed a man I called friend . . . .
There is no hope of lasting 3 years on the Ready List for the simple fact they will
run out of people on the list long before that and have to kill me.
Branch Excerpts. Less than a month later, Mr. Branch received a copy of correspondence to
Governor Scott’s office notifying Governor Scott that Mr. Branch had exhausted his appeals. Mr.
Branch wrote, “Julie McCall . . . inform[ed] Governor Scott that I am ready to be executed. Well,
I am not ready but that is of little consequence. They are ready for me.” Id. Mr. Branch went on to
bluntly state, “No escaping it any longer. It is here. Basically, whenever the Governor wants me
Mr. Branch’s attempts to predict when he would die continued. Shortly after his clemency
hearing, he wrote:
Another concern. It’s based on rumor. The governor has a list of 17 men, myself
included. They are rushing clemency proceedings, hoping to execute us 17 during
his term. I cannot confirm that fact . . . . But this much is clear. My two neighbors
appeals were over years ago. Neither of them have had clemency. Whereas I, in 5
months since my last appeal, have had a hearing.
Id.
Left with little to think of except his pending execution, Mr. Branch wrote, “Most days I
don’t even feel like opening my eyes. I am constantly tired, sad, lonely, hungry, and generally
miserable . . . .” Id. Mr. Branch, a man who for years had so proactively fought to save his life,
finally stated, “Often I think I should disappear, leaving everybody . . . alone as I vanish from
33
existence. . . . My mind is full of these struggles which lately seem to take up more of my time
In January 2013, almost a year after the United States Supreme Court had denied certiorari
review, Mr. Branch told his cousin, “Way too much damn stress. I feel like somebody has been
standing behind me with a gun to my head for a year now. It’s fucking exhausting.” Id. A few
The tough part is that now everyone they are killing has been here with me for 20
years. Its [sic] kind of like coming into work and finding every month another
person you’ve worked in the office with for 20 years has been taken out back and
killed. Even when it’s not you, it’s so much stress.
Id.
In the spring of 2013, the “Timely Justice Act” made its way through the Florida
legislature. Mr. Branch was certain this meant his execution was imminent. He said to his cousin,
Id.
The Act made it even harder to obtain representation. On June 12, 2013, Ms. Olson-Gault
contacted Alex Branch to make him aware of the Act and its effects on the ABA’s efforts. She
warned him, “We are continuing to try to recruit someone for Eric’s case, but particularly with all
the uncertainty regarding the new law, firms are reluctant to get involved.” Email from Emily
Mr. Branch started planning a legal challenge to the registry system. He sent the petition
to his family to type. Branch Excerpts. Mr. Branch was still concerned about the three month wait
on the “Ready List,” and he planned his filings around that time. Id.
34
On June 23, 2013, Mr. Branch filed a 192-page motion for appointment of counsel and
supporting memorandum of law. ECF No. 68. The motion noted then-recent Supreme Court
decisions Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). Since
exhausting his appeals in federal court, Mr. Branch had returned to state court to file a successive
3.851 motion and also filed a § 1983 action based on those decisions. Id. The State opposed
appointment of counsel to represent Mr. Branch in those actions. ECF No. 69. It argued that Mr.
Branch could have counsel to represent him through warrant litigation and nothing else. Id. In his
It must be noted that unlike the majority of petitioners filing claims under Martinez,
here, the record will reflect that beginning in state court, Petitioner repeatedly
attempted to inform the courts about his lawyer and, [sic] all the courts, including
this one, silenced Petitioner, denying/voiding his pleadings on the State’s argument
that they were illegal filings or that because he had no constitutional right to
counsel, he had no right to effective or conflict free counsel.
ECF No. 70. Mr. Branch went on to argue that because of the registry system, “constitutionally
meritorious claims have gone without review or remedy.” Id. The district court granted Mr.
Branch’s motion and allowed access to his court file “to any attorney who indicates the attorney
A month later, the district court ordered Mr. Branch to find his own counsel to be appointed
by the Court. ECF No. 73. In that order, the court noted that the Eleventh Circuit had permitted
Mr. Reiter to withdraw from Mr. Branch’s case. Id. The court lamented that it was “no easy task”
to find representation for Mr. Branch. Id. The court went on, “At my direction, my staff has
contacted attorneys to determine their willingness to accept an appointment. None have agreed to
do so.” Id. The court then gave Mr. Branch ninety days to find his own attorney. Id.
Following the court’s order, Mr. Branch immediately contacted his cousin to suggest more
names and firms. Branch Excerpts. Alex Branch reached back out to many of the attorneys he had
35
previously contacted to let them know the court would ensure payment for their service. See Emails
from Alex Branch to Capital Defense Lawyers. Mr. Branch updated Ms. Olson-Gault: “I’m hoping
the fact the court has agreed to appoint and thus pay whoever I find will be enough to pursuade
In the fall of 2013, Ms. Olson-Gault was able to find a team of local lawyers to help her
find a firm to take on Mr. Branch’s case, including Karen Gottlieb and Sonya Rudenstine. Another
ABA attorney, Becca Eden, was also assisting Ms. Olson-Gault. With all their contacts, they still
struggled to find anyone who could take on Mr. Branch’s case by the deadline.
Meanwhile, Mr. Branch grew increasingly concerned when Governor Scott signed a
warrant for Mark Kimbrough, who had had his clemency hearing on the same day as Mr. Branch.
Branch Excerpts. Mr. Branch told Leora that Governor Scott was going to sign warrants for the 13
men who had had their clemency hearings during his term before moving on to others who had
exhausted their appeals. Id. The Timely Justice Act had struck a stronger sense of paranoia on
death row, and the men wondered to themselves how many warrants would be signed at one time.
Now, every time the door opens, it falls quiet, everybody wondering if he did it . .
. signed all our warrants or is he coming after just one of us today . . . . Anybody
who survives this will be driven nuts, watching 120 people they know get killed,
wondering at each open door – am I next? It’s too much.
Id.
Mr. Branch’s increasing stress was known to those trying to assist him. On November 7,
2013, Ms. Olson-Gault wrote to Ms. Rudenstine, “[H]e is understandably stressed about the
situation.” More than a month later, the ABA was still struggling to find representation for Mr.
Branch. In an email to Ms. Gottlieb, the ABA wrote, “I want to provide an update that we are still
looking for counsel to assist you and Sonya with the case but have had no luck this far.” Feeling
36
they needed more contacts, Ms. Gottlieb reached out to Stephen Harper who runs the capital trial
defense law clinic at Florida International University Law School. Even after Ms. Gottlieb
recruited Mr. Harper, on December 11, 2013, she told him and Ms. Rudenstine, “[E]very
competent capital attorney has been contacted and refused to take Eric’s case.”
On November 15, 2013, Sylvia Walbolt of Carlton Fields PA offered her assistance and
sent a letter to the court requesting more time to find Mr. Branch a lawyer. ECF No. 74. The court
Mr. Branch submitted his own update to the court on December 4, 2013. ECF No. 76. Mr.
Branch noted the efforts of the ABA. Id. He also mentioned that his cousin and Ken Driggs, a
former CCR attorney, were conducting their own search for counsel. Id. Mr. Branch promised
In his status report to the court, Mr. Branch documented his extensive search for
representation. ECF No. 77. He included his years-long correspondence with the American Bar
Association. Id. He noted Alex Branch’s exhaustive attempt to find counsel, including a list of the
various lawyers and organizations that Alex Branch had contacted. Id. The search included local
members of the capital defense community, as well as capital defense lawyers, experts, such as
Professor Michael L. Radelet, Ph.D., and Supreme Court litigators, such as Seth Waxman. Id. Alex
Branch also quickly contacted the newly-formed Capital Collateral Regional Counsel – North. Id.
Petitioner is well aware that in capital cases who lives and who dies is often more
the result of quality of counsel than the crime they are accused of committing. As
Petitioner’s report and appendix demonstrates, he is giving the search for counsel
that degree of seriousness, reaching out into the world to every connection he has
made the past twenty years . . .
37
Id. In a 78-page appendix, Mr. Branch included correspondence he and Alex Branch had had with
attorneys and organizations across the country in an effort to find a lawyer. Id.
After a three and a half year search, Ms. Olson-Gault found counsel for Mr. Branch. On
December 23, 2013, Mr. Branch notified the court that the ABA had been able to find a local
lawyer, Jason Cromey of Pensacola, and Doug Knox, of Quarles & Brady, to represent Mr. Branch.
Id. On December 24, 2013, the district court appointed Jason Cromey to represent Mr. Branch in
any collateral proceedings under the Criminal Justice Act. ECF No. 79.
In all, the ABA pitched Mr. Branch’s case to more than a dozen law firms nationwide.
Letter from the ABA Death Penalty Representation Project to Kimberly Newberry (January 25,
2018) (hereinafter “ABA Letter”). His case had been highlighted in emails to over 100 law firm
pro bono coordinators and during “recruitment meetings hosted by state and federal judges in
several cities.” Id. Ms. Olson-Gault remembers Mr. Branch’s frequent contact in getting updates
and sending suggestions through the entire search. Alex Branch also routinely communicated with
her. Ms. Olson-Gault writes of Mr. Branch: “He was as diligent and persistent in seeking
representation and trying to preserve his claims as any death-sentenced prisoner I have encountered
in my many years of working with the Project.” Id. Indeed, in 60 letters to various family members
through the years, Mr. Branch mentioned the problems he was having with is attorneys, strategies
for getting a new attorney, or pleadings he was drafting himself due to his dearth of adequate
Ultimately, by the time the ABA confirmed pro bono counsel for Mr. Branch, it was too
late. When Mr. Branch first wrote the ABA, the district court had just denied his § 2254 petition.
When James Cromey and Doug Knox filed their notices of appearance, Mr. Branch’s Eleventh
38
Circuit appeal and petition for writ of certiorari were long since denied. As Ms. Olson-Gault
describes:
[I]t is extremely regrettable that it took so much time to secure representation for
Mr. Branch, because his case was in a very difficult procedural posture by the time
those pro bono lawyers finally took over. We recognize that if we had been able to
find a law firm sooner – or if Mr. Branch had received consistent, qualified
representation from court-appointed counsel throughout the case – his current legal
situation might be different.
ABA Letter.
I. This claim satisfies procedural requirements and this Court has the authority to grant
a hearing and relief on the merits
Defendant’s claim that his execution would violate the Eighth Amendment due to his
Emerging medical science not available during Defendant’s prior litigation establishes that human
brain development, once thought to be functionally completed by the late teenage years, continues
into an individual’s mid-twenties, rendering those in their early twenties cognitively comparable
to juveniles under the age of eighteen. This emerging science is a valid basis for assessing
Defendant’s claim on the merits, under the newly-discovered evidence prong of Rule 3.851(e)(2).
Florida’s courts have long understood, and recently reaffirmed, that emerging science can
constitute newly discovered evidence for purposes of post-conviction litigation. See, e.g., Duncan
39
v. State, No. 2D16-2625, 2017 WL 1422648, at *2 (Fla. 2d DCA Apr. 21, 2017) (“[W]e disagree
with the postconviction court’s conclusion that scientific evidence in the form of articles and
studies cannot constitute newly discovered evidence.”); Clark v. State, 995 So. 2d 1112, 1113 (Fla.
2d DCA 2008) (holding that new scientific evidence could be considered newly discovered
evidence); Zamarippa v. State, 100 So. 3d 746, 747 (Fla. 2d DCA 2012) (reversing and remanding
for an evidentiary hearing because a scientific organization’s new report on comparative bullet-
lead analysis could constitute newly discovered evidence); Murphy v. State, 24 So.3d 1220, 1222
The Florida Supreme Court has also consistently held that new scientific evaluations
evidence. For example, mental health examinations conducted years after trial can produce newly-
discovered evidence. See State v. Sireci, 502 So. 2d 1221 (Fla. 1987). Scientific advances also give
rise to “newly discovered evidence claims predicated upon new testing methods or technologies
that did not exist at the time of trial, but are used to test evidence introduced at the original trial.”
Wyatt v. State, 71 So. 3d 86, 100 (Fla. 2011); see also Preston v. State, 970 So. 2d 789, 798 (Fla.
2007) (holding new DNA testing of pubic hair constituted newly discovered evidence); Hildwin v.
State, 951 So. 2d 784, 788-89 (Fla. 2006) (holding new DNA testing of semen and saliva was
To the extent Florida has not yet grappled with the specific question whether emerging
science since Roper v. Simmons, 543 U.S. 551 (2005)—establishing that individuals in their early-
to-mid-twenties are no more cognitively developed than individuals in their mid-to-late teens—
this Court should hold that such evidence does satisfy procedural requirements in Florida.
40
Defendant’s claim goes to the fundamental premise of Roper’s holding that the Eighth Amendment
prohibits the death penalty for juveniles, and suggests that a modification of that premise in
Florida, from a rigid cutoff of 18 years old, to a more holistic approach that allows individuals in
their twenties to demonstrate that they are the cognitive equivalent of juveniles, is necessary to
Any uncertainty over whether Defendant’s newly presented evidence constitutes newly
discovered evidence within the meaning of Rule 3.851(e)(2) should be resolved at an evidentiary
hearing. See Swafford v. State, 679 So.2d 736 (Fla. 1996) (remanding to the trial court for an
evidentiary hearing on whether evidence was newly-discovered for purposes of successive post-
conviction litigation). This is especially true in a capital case. See id. at 740-41 (Harding, J.,
concurring) (explaining that, to the extent using newly discovered evidence to attack a judgment
is inconsistent with the concept of finality, “it is an inconsistency that comports with fairness in
certain circumstances . . . . While finality is important in all legal proceedings, its importance must
be tempered by the finality of the death penalty.”); see also Jones v. State, 678 So. 2d 309, 310
(Fla. 1996) (staying execution and remanding for an evidentiary hearing to determine whether
As set forth below, Defendant’s evidence regarding the emerging science on cognitive
brain development, considered cumulatively with all of the evidence in this case, establishes that
the Eighth Amendment principle announced in Roper applies equally to his case and prohibits his
execution based on his age and cognitive brain development at the time of the offense. See Hildwin
v. State, 141 So. 3d 1178 (Fla. 2014) (explaining that the impact of newly-discovered evidence
must be evaluated in combination with the totality of the evidence in the case). In accord with
these principles, prior counsel explains that this claim could not have been raised before. Knox
41
Dec. at ⁋ 3-4 (“This science did not exist at the time I represented Eric or beforehand. . . . Had
this new scientific understanding in the mental health professions been available to me during the
This Court has the authority to grant expansive constitutional relief on Defendant’s claim
than the minimum standard set forth in Roper. The United States Supreme Court has not yet
addressed whether Roper’s prohibition on the execution of juveniles who were under age 18 at the
time of the offense should be expanded to include individuals like Defendant, who was in his early
twenties at the time of the offense but was in a medical sense no more cognitively developed than
a person in his mid-teens. But this Court need not await a ruling from the United States Supreme
Court on that issue before granting relief. While Roper sets the minimum standards, or
constitutional “floor,” the Florida Supreme Court has long recognized that Florida’s state courts
The Florida Supreme Court recently reaffirmed the prerogative to grant more expansive
relief under the Eighth Amendment, as well as the corresponding provisions of the Florida
Constitution, even where the United States Supreme Court had not directly addressed the issue at
hand. In Hurst v. State, 202 So. 3d 40, 59-60 (Fla. 2016), the Florida Supreme Court held that,
despite the United States Supreme Court’s decision to address only the Sixth Amendment
implications of Florida’s prior capital sentencing scheme, the Florida Supreme Court was
empowered to rule that the scheme violated the Eighth Amendment and accordingly to grant relief.
Id. at 50 (“Although the United States Supreme Court has not ruled on whether unanimity is
required in the jury’s advisory verdict in capital cases, the foundational precept of the Eighth
Amendment calls for unanimity in any death recommendation that results in a sentence of death.”);
42
see also id. at 74 (Pariente, J., concurring) (explaining that because the United States Supreme
Court had not addressed the relevant Eighth Amendment question, the Florida Supreme Court
could properly consider and decide the matter itself for Florida).
As another example, before the United States Supreme Court held that its Eighth
Amendment decision barring mandatory life sentences for juveniles must be applied retroactively
on collateral review, the Florida Supreme Court had already applied the decision retroactively to
all Florida defendants in Falcon v. State, 162 So. 3d 954 (Fla. 2015), under its independent
authority to expand upon the minimum constitutional standards set by the United States Supreme
Court. See also Danforth v. Minnesota, 552 U.S. 264, 280 (2008) (noting that states are free to
expand protections “as long as they do not infringe on federal constitutional guarantees”).
Roper set the floor of constitutional protection for juveniles facing the death penalty. This
Court need not await guidance from the United States Supreme Court on whether the Eighth
Amendment also protects from execution those like Defendant who were the cognitive, if not
numerical, equivalent of juveniles at the time of their defense. This Court has the authority to and
should reach Defendant’s claim on the merits now, based upon Eighth Amendment’s requirements,
and create a record upon which the Florida Supreme Court and, if necessary, the United States
II. It is cruel and unusual punishment to impose death sentences on those in their late
teens and early twenties, functional adolescents whose culpability is comparable to
juveniles under eighteen
Mr. Branch’s execution would violate the Eighth Amendment. He was twenty-one years
old at the time of the offense. While the United States Supreme Court has already precluded capital
punishment for juveniles under the age of eighteen, see Roper v. Simmons, 543 U.S. 551 (2005),
the evolving standards of decency today show that extended adolescents in their late teens and
43
early twenties also do not have the requisite culpability to be sentenced to death. Today’s newly
developed science in the area of adolescent brain development shows that extended adolescents
are more comparable to their younger counterparts than they are to people with matured adult
brains. While twenty-one-year-olds generally bear these characteristics, Mr. Branch in particular
had cognitive delays due to his traumatic childhood and history of adolescent alcohol and
substance abuse. Accordingly, Mr. Branch’s execution would be a violation of the Eighth
fines imposed, nor cruel and unusual punishments inflicted” and prohibits “all excessive
punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins
v. Virginia, 536 U.S. 304, 311 n.7 (2002); see also Enmund v. Florida, 458 U.S. 782, 788 (1982).
To align with the Eighth Amendment, a punishment must be “graduated and proportionate to [the]
offense.” Weems v. United States, 217 U.S. 349, 367 (1910). Whether a punishment is
proportionate is determined by the evolving standards of decency, since “the standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself
remains the same, but its applicability must change as the basic mores of society change.” Kennedy
v. Louisiana, 554 U.S. 407, 419 (2008) (citing Furman v. Georgia, 408 U.S. 238, 382 (1972)
(Burger, J., dissenting)). Accordingly, the Eighth Amendment guarantee is not restricted by those
punishments deemed unconstitutional during the eighteenth century when the Bill of Rights was
originally drafted. Gregg v. Georgia, 428 U.S. 153, 171 (1976). The standard is ever-changing as
“public opinion becomes enlightened by a humane justice,” Gregg, 428 U.S. at 171 (citing Weems,
217 U.S. at 378), and it is a well-established principle that “[t]he Amendment must draw its
44
meaning from the evolving standards of decency that mark the progress of a maturing society.”
The Eighth Amendment places strict limits on how far the government can go in exercising
the “power to punish.” Kennedy, 554 U.S. at 435. It must stay “within the limits of civilized
standards.” Trop, 356 U.S. at 100. The Supreme Court has also stated that “[t]he basic concept
underlying the Eighth Amendment is nothing less than the dignity of man.” Id. The “[e]volving
standards of decency must embrace and express respect for the dignity of the person, and the
punishment of criminals must conform to that rule.” Kennedy, 554 U.S. at 420.
The concern over cruel and unusual punishment becomes even more significant when a
person’s life is at stake. When this happens, “the Court has been particularly sensitive to insure
that every safeguard is observed,” because “[t]here is no question that death as a punishment is
unique in its severity and irrevocability.” Gregg, 428 U.S. at 187. Accordingly, there are two rules
that courts must follow when imposing a sentence: “First, the punishment must not involve the
unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of
proportion to the severity of the crime.” Id. at 173 (internal citations omitted). When applied to the
death penalty, a death sentence “is excessive when it is grossly out of proportion to the crime or it
does not fulfill the two distinct social purposes served by the death penalty: retribution and
deterrence of capital crimes.” Id. at 183. The sentence must meet both of these conditions, since
6
“[E]volving standards of decency” necessarily evolve, and what may have been acceptable to the
courts and society at large historically may not prove acceptable later in time. Compare Penry v.
Lynaugh, 492 U.S. 302 (1989) (holding constitutional the execution of intellectually disabled
people), with Atkins, 536 U.S. at 319 (prohibiting the execution of intellectually disabled people);
compare Stanford v. Kentucky, 492 U.S. 361, (1989) (holding constitutional the execution of
offenders under 18 years), with Roper, 436 U.S. at 560 (prohibiting the execution of offenders
under 18 years).
45
“[a] punishment might fail the test on either ground.” Kennedy, 554 U.S. at 441 (citing Coker, 433
When deciding the proportionality of a death sentence, “the Court [also] insists upon
confining the instances in which the punishment can be imposed.” Id. at 420. The result has been
that the death penalty is only proportionate when used for “‘a narrow category of the most serious
crimes’ and on those whose extreme culpability makes them ‘the most deserving of execution.’”
Id. (citing Roper, 543 U.S. at 568). Accordingly, when capital punishment was reintroduced in
1976, the trend nationwide was to provide factors to narrow the jury’s discretion when deciding
who fits into that category. See, e.g., Roper, 543 U.S. at 568 (recognizing that the death penalty
At the same time as narrowing the death penalty’s use, however, the Court has also
emphasized the importance of considering the individual circumstances of each offender and the
underlying crime. Woodson v. North Carolina, 428 U.S. 280, 304 (1976). “Given that the
imposition of death by public authority is so profoundly different from all other penalties, . . . an
individualized decision is essential in capital cases.” Lockett v. Ohio, 438 U.S. 586, 605 (1978).
The jury may not be “precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Id. at 604. However, because of “the resulting
imprecision and the tension between evaluating the individual circumstances and consistency of
treatment,” courts must “insist upon confining the instances in which capital punishment may be
There are times, then, when a death sentence is unconstitutionally excessive. In light of
these principles, the Supreme Court has adopted two steps when faced with excessiveness claims
46
regarding the death penalty. It first looks to “objective indicia of society’s standards, as expressed
in legislative enactments and state practice with respect to executions.” Roper, 543 U.S. at 563.
To make this assessment the Court generally considers “the historical development of the
punishment at issue, legislative judgments, international opinion, and sentencing decisions juries
have made . . . .” Enmund, 458 U.S. at 788. After the objective indicia, the Court moves to the
second step, which considers proportionality in light of the “standards elaborated by controlling
precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s
text, meaning, and purpose.” Kennedy, 554 U.S. at 421. This second step is the more dominant
factor. Enmund, 458 U.S. at 797 (“Although the judgments of legislatures, juries, and prosecutors
weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment
permits imposition of the death penalty.”). By using this test, the Supreme Court has found the
death penalty unconstitutionally excessive when used against those who have not committed
homicide, see Kennedy, 554 U.S. at 421; Enmund, 458 U.S. at 801; Coker, 433 U.S. at 59; those
with intellectual disabilities, see Atkins, 536 U.S. at 321; and juveniles under eighteen, see Roper,
543 U.S. at 578. Such decisions are made in light of the underlying principles of narrowing the
death penalty’s use and exercising restraint on potential brutality, and in doing so courts must
ensure that only those viewed as having the most severe culpability face execution.
the medical community and scientific data in determining where to draw the lines of culpability.
For example, in Hall v. Florida, 134 S. Ct. 1986 (2014), the Supreme Court relied heavily on the
standards the medical community had devised for determining intellectual disability. As the Court
explained in Kennedy:
That this Court, state courts, and state legislatures consult and are informed by the
work of medical experts in determining intellectual disability is unsurprising. Those
47
professionals use their learning and skills to study and consider the consequences
of the classification schemes they devise in the diagnosis of persons with mental or
psychiatric disorders or disabilities. Society relies upon medical and professional
expertise to define and explain how to diagnose the mental condition at issue.
Kennedy, 134 S. Ct. at 1993. In Hall, the Supreme Court found that Florida’s brightline test
precluding anyone with an I.Q. score of over 70 ignored the medical consensus that I.Q. score
alone is not conclusive evidence of a person’s intellectual capacity, while also disregarding the
imprecision of I.Q. testing. Hall, 134 S. Ct. at 1995. For this reason, the Court found:
The death penalty is the gravest sentence our society may impose. Persons facing
that most severe sanction must have a fair opportunity to show that the Constitution
prohibits their execution. Florida’s [brightline cutoff] contravenes our Nation’s
commitment to dignity and its duty to teach human decency as the mark of a
civilized world. The States are laboratories for experimentation, but those
experiments may not deny the basic dignity the Constitution protects.
Id. at 2001. Thus, when confronted with medical indicia of a person’s culpability, or lack thereof,
eighteen in Roper, 543 U.S. at 578. That case was in itself an adjustment to the evolving standards
of decency, as it revisited its 1989 decision in Stanford v. Kentucky, 492 U.S. 361 (1989), allowing
for the imposition of death sentences on sixteen- and seventeen-year-olds. The medical community
has now overwhelmingly determined that adolescents in their late teens and early twenties are
more comparable to their younger peers than they are to adults in their late-twenties or thirties with
fully developed brains. For the same reasons Roper extended the categorical bar to all adolescents
under eighteen, it is now time for the law to meet science and for Roper to extend to those in their
early twenties.
48
1. The Eighth Amendment already treats juveniles under eighteen as a
separate category from adults
In Roper, the Court explained, “The differences between juvenile and adult offenders are
too marked and well understood to risk allowing a youthful person to receive the death penalty
Relying on scientific studies, the Court observed: “Three general differences between
juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be
classified among the worst offenders.” Id. at 569. First, “[a] lack of maturity and an
underdeveloped sense of responsibility are found in youth more often than in adults and are more
understandable among the young. These qualities often result in impetuous and ill-considered
actions and decisions.” Id. (citations omitted). The Court next observed:
Id. Finally, the Court explained, “The third broad difference is that the character of a juvenile is
not as well formed as that of an adult. The personality traits of juveniles are more transitory, less
fixed.” Id. at 570. “These differences render suspect any conclusion that a juvenile falls among the
The Court applied this same reasoning ten years later when it held unconstitutional the
imposition of mandatory life without parole sentences on individuals who were under eighteen at
the time of the offense. Miller v. Alabama, 567 U.S. 460 (2012). In explaining its reasoning, the
Court stated:
Our decisions rested not only on common sense—on what any parent knows— but
on science and social science as well. In Roper, we cited studies showing that only
a relatively small proportion of adolescents who engage in illegal activity develop
49
entrenched patterns of problem behavior. And in Graham, we noted that
developments in psychology and brain science continue to show fundamental
differences between juvenile and adult minds—for example, in parts of the brain
involved in behavior control. We reasoned that those findings—of transient
rashness, proclivity for risk, and inability to assess consequences—both lessened a
child’s moral culpability and enhanced the prospect that, as the years go by and
neurological development occurs, his deficiencies will be reformed.
Since the Court’s decision in Roper, scientific and social-science research has
demonstrated that, like sixteen- and seventeen-year-olds, people in their late teens and early
twenties do not have fully developed brains, are immature, and are vulnerable to peer pressure and
risk-taking behavior. “The age of 18 as a ‘bright line’ is not in accord with the current findings of
research in developmental science. This research reveals that human brain maturation is ordinarily
not complete until the mid-20’s . . . . This [is a] new understanding . . . .” Garbarino Report at 2.
In Roper, the first category of traits cited by the Supreme Court as grounds for treating
juveniles differently than adults includes immaturity, irresponsibility, and impulsivity. Roper, 543
50
U.S. at 569. “The susceptibility of juveniles to immature and irresponsible behavior means ‘their
irresponsible conduct is not as morally reprehensible as that of an adult.’” Id. at 570 (quoting
Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)). As the reports submitted in this proceeding
relate:
The pre-frontal cortex is the area of the brain in which executive functions are
developed. This region of the brain makes it possible to assess risk, think ahead, set
goals, and plan ahead. Significant development of the pre-frontal region of the brain
continues until at least the mid-twenties. Complex planning, the ability to focus on
one thing while ignoring distractions, decision-making, impulse control, logical
thinking, risk management, organized thinking, and short-term memory are all
functions of the pre-frontal cortex.
Adolescent brains are immature—an immaturity that extends into early adulthood.
This includes the frontal lobes which play a crucial role in making good decisions,
controlling impulses, focusing attention for planning, and managing emotions.
Science now understands that the process of maturation involves three components
of brain function: “gray matter”- the outer layer of the brain, “white matter
connections” - the brain cells serving as the “wiring” between neurons, and activity
in the chemicals or “neurotransmitters” that execute messages within the brain. All
three are compromised in an individual in his early 20’s.
A consequence of their immature brains, adolescents seek risk. Research has shown that
“individuals in the young adult period (i.e. ages 18-21)” are at a greater risk to engage in risky
behavior than younger adolescents, which indicates “that this period of development is an
important transition.” Rudolph, M., At Risk of Being Risky: The Relationship between ‘Brain Age’
under Emotional States and Risk Preference, Dev. Cognitive Neurosci. 24:93-106 at 102 (2017).
51
broad array of abilities such as impulse control, risk management, and decision making—continues
The second category of traits cited by the Roper Court as grounds for treating juveniles
differently than adults includes vulnerability and susceptibility. Roper, 543 U.S. at 569. “Their
own vulnerability and comparative lack of control over their immediate surroundings mean
juveniles have a greater claim than adults to be forgiven for failing to escape negative influences
in their whole environment.” Id. at 570. The vulnerabilities of twenty-one year olds are analogous
Garbarino Report at 3.
The third category of traits cited by the Roper Court as grounds for treating juveniles
differently than adults includes transitory personality and unfixed character. Roper, 543 U.S. at
570. “The reality that juveniles still struggle to define their identity means it is less supportable to
conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved
character. From a moral standpoint it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor’s character deficiencies will be
reformed.” Id.
This reasoning applies with equal force to those in their early twenties as it does to
seventeen year olds. The brain development integral for a person to gain the capacity to achieve a
stable identity is not complete until the mid-twenties. See generally Garbarino Report at 3-4. And
52
Mr. Branch clearly fits the brain development pattern recognized by current
science. In his late teens and early 20’s he is described as immature, impulsive,
often not functional, unable to recognize cause and effect, emotionally labile, acting
out, lacking an appropriate understanding of legal proceedings and their
consequences, and lacking in self-control. As his history demonstrates, at the time
of the offense and trial, his functioning was still that of a child. Later in life and
currently, he is thoughtful, mature, considerate of others, and taking steps to assist
himself in the legal process.
Id. at 4.
As the United States Supreme Court explained in Hall, “The Eighth Amendment ‘is not
fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a
humane justice.’” Hall, 134 S. Ct. at 1992 (quoting Weems, 217 U.S. at 349). In Hall, the Court
stated that “it is proper to consider the psychiatric and professional studies that elaborate on the
purpose and meaning of IQ scores to determine how the scores relate to the holding of Atkins.”
Hall, 134 S. Ct. at 1993. And in Miller, the Court discussed that the decisions in Roper and Graham
“rested not only on common sense . . . but on science and social science . . . and ‘developments in
psychology and brain science.’” Miller, 567 U.S. at 471. Similarly, it is appropriate for this Court
to consider scientific and social science studies to assess the age and neurological development of
in his mid-twenties and a seventeen-year-old. Both have brains that have not fully developed; both
are prone to immaturity, recklessness, and impulsivity. Both are still in the neurological
development phase; both are vulnerable, have transitory personality traits, and are searching for a
53
3. Other objective indicia demonstrate that society as a whole is treating
older adolescents in the same way as their younger counterparts
In addition to the emerging consensus of the medical and scientific community, state and
local governments, juries, and international governments are increasingly treating extended
than adults and more similarly to juveniles under eighteen. In assessing the existence of national
consensus on an issue, the United States Supreme Court has examined laws enacted by the various
state legislatures and the decisions of sentencing juries, appellate courts, and governors about
whether to execute defendants who belong to a particular category of individuals, such as those
under eighteen. Roper, 543 U.S. at 563-65; see also Atkins, 536 U.S. at 313-17. “Statistics about
the number of executions may inform the consideration whether capital punishment . . . is regarded
In Roper, the Court examined national consensus with respect to the execution of juvenile
offenders. According to the Court, “30 States prohibit the juvenile death penalty, comprising 12
that have rejected the death penalty altogether and 18 that maintain it but, by express provision or
judicial interpretation, exclude juveniles from its reach.” Roper, 543 U.S. at 564. The Court also
looked to the number of executions for defendants who were sixteen or seventeen at the time of
their crimes, finding that “even in the 20 States without a formal prohibition on executing
juveniles, the practice [was] infrequent.” Id. at 564-67. Ultimately, the Court found that “the
infrequency of its use even where it remains on the books; and the consistency in the trend toward
abolition of the practice—provide sufficient evidence that today our society views juveniles, in the
words Atkins used respecting the intellectually disabled, as “categorically less culpable than the
54
average criminal.” Id.; see also Hall, 134 S.Ct. at 1997 (“Consistency of the direction of change is
also relevant.”).
Here, there is similarly a trend supporting the idea that extended adolescents should not be
subjected to the death penalty. First, extended adolescents over seventeen would not be executed
for any offense in twenty-three states, the District of Columbia, and the five United States
territories. Currently, nineteen states and the District of Columbia have abolished the death penalty
as to all crimes. Facts about the Death Penalty, Death Penalty Information Center (2018). 7
Nor is a death sentence likely to be imposed under the laws of any of the five United States
Territories. The death penalty is prohibited under the constitutions of Puerto Rico and the
Commonwealth for the Northern Mariana Islands. See P.R. Const. Art. II § 7; C.N.M.I. Const. Art.
I § 4(i). In Guam and the U.S. Virgin Islands, the death penalty is not a possible sentence. See,
And the governors of four states have imposed moratoria on executions: Pennsylvania,
Oregon, Washington, and Colorado. In Hall, the Court characterized the moratoria states as being
on the defendant’s “side of the ledger” in the national consensus equation. Hall, 134 S. Ct. at 1997.
Put simply, in twenty-three states, the District of Columbia, and the five United States
Territories, those just past the Roper cut-off would be excluded from eligibility from the death
penalty.
Second, a court must look to the states who allow a punishment but do not actually impose
7
The States that have abolished the death penalty (along with the dates of abolition) are Alaska
(1957), Connecticut (2012), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland
(2013), Massachusetts (1984), Michigan (1846), Minnesota (1911), New Jersey (2007), New
Mexico (2009), New York (2007), North Dakota (1973), Rhode Island (1984), Vermont (1964),
West Virginia (1965), and Wisconsin (1853).
55
[T]he many States that allow life without parole for juvenile nonhomicide offenders
but do not impose the punishment should not be treated as if they have expressed
the view that the sentence is appropriate. The sentencing practice now under
consideration is exceedingly rare. And “it is fair to say that a national consensus
has developed against it.”
Graham, 560 U.S. at 67 (citations omitted). The Court’s opinion makes clear that actual practice—
Here, among states that theoretically authorize the death penalty for extended adolescents
over seventeen, seven reveal a trend against using eighteen as the cut-off. They have not executed
any offender under the age of twenty-one years in the last fifteen years. Even if those seven states
have offenders under twenty-one on their death rows, they have not imposed any new death
sentences on offenders in that age group in the last 20 years. This means that 30 States, plus the
District of Columbia and the five U.S. Territories, have decided to go beyond age eighteen in
banning outright or imposing death sentences for adolescents older than seventeen. 8
Similarly, states are expanding past the Roper cutoff in decreasing the number of
executions for those who were younger at the time of their crimes. Even in the remaining states
with the death penalty as an authorized punishment for offenders under 21 years, executions occur
in a minority of the states. In the last ten years, for example, only 12 states have actually executed
offenders who were 21 or younger at the time of their offenses: Texas, Virginia, Oklahoma,
Florida, Delaware, Mississippi, Alabama, Ohio, Georgia, South Carolina, Indiana, and South
8
The most recent example of a state departing from Roper’s age eighteen cutoff is Kentucky,
where a circuit court judge has ruled the death penalty unconstitutional for those under twenty-one
in two cases. See Vandiver, B., Trial Delayed, Death Penalty under Review, University of
Kentucky Kentucky Kernel (Oct. 20, 2017), http://www.kykernel.com/news/trial-delayed-death-
penalty-under-review/article. Mr. Branch asserts that while this shows that states are willing to go
beyond eighteen, this does not go far enough to protect all extended adolescents who have similar
cognitive deficiencies.
56
Dakota. Since 2011, that number has dropped to nine states. Indeed, of the 29 states that have had
executions since 2000, 14 states did not execute anyone under 21 years, and four of those states
have since repealed the death penalty or imposed a moratorium on executions. Of the remaining
states, death sentences are infrequently imposed on defendants under 21 or younger, and actual
requirements to buttress its conclusion that the death penalty was a prohibited punishment for
juvenile offenders: “In recognition of the comparative immaturity and irresponsibility of juveniles,
almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying
The same is true for extended adolescents. In the capital sentencing context, while age is
not yet a categorical ban, it is a mitigating factor in almost all death penalty states. Since capital
punishment is prohibited for those under eighteen, the age mitigating factor clearly goes to those
9
Twenty-three of the death penalty states that provide specific mitigating factors in their capital
sentencing statutes, including Florida, include age of the offender at the time of the crime. See
Alabama, Ala. Code § 13A-5-51(7); Arizona, Ariz. Rev. Stat. § 13751(5); Arkansas, Ark. Code.
Ann. § 5-4-605(4); California, Cal. Penal Code § 190.3 (i); Colorado, Colo. Rev. Stat. Ann. § 18-
1.3.1201(a); Florida, Fla. Stat. Ann. § 921.141 (g); Kansas, Kan. Stat. Ann. § 21-6625(7);
Kentucky, Ky. Rev. Stat. Ann. & 532.025(8); Louisiana, La. C.Cr. P. art. 905.5(f); Mississippi,
Miss. Code Ann. § 99-19-101(g); Missouri, Mo. Ann. Stat. § 565.032(7); Nebraska, Neb. Rev.
Stat. Ann. § 29-2523(d); Nevada, Nev. Rev. Stat. Ann. §200.035(6); New Hampshire, N.H. Rev.
Stat. Ann. § 630:5(d); North Carolina, N.C. Gen. Stat. Ann. § 15A-2000(7); Ohio, Ohio Rev. Code
Ann. §(4); Pennsylvania, 42 Pa. Stat. § 9711(4); South Carolina, S.C. Code Ann. § 16-3-20(7);
Tennessee, Tenn Code Ann. § 39-13-204(7); Utah, Utah Code Ann. § 76-3-207(e); Virginia, Va.
Code Ann. § 19.2-264.4(v); Washington, Wash. Rev. Code Ann. § 10.95.070(7); Wyoming, Wyo.
Stat. Ann. § 6-2-102(vii).
57
In determining intellectual disability, one of the prongs is onset during the developmental
period. While this is commonly thought of to be age eighteen, three death penalty state have
interpreted ‘onset in the developmental period’ as onset prior to age twenty-two: Indiana, Utah,
and Maryland. Ind. Code § 35-36-9-2 (2017); Utah Code § 77-15a-102; Md. Code, Crim Law §
2-202 (2010).
The “onset during the developmental period” factor also arises in civil commitment cases.
There, some non-death penalty states have civil commitment statutes which interpret “onset in the
developmental period” as onset prior to age twenty-two: Minnesota, New Mexico, and Rhode
Island. Minn. Stat. § 253B.02; N.M. Stat § 28-16A-6; N.M. Stat § 43-1-3; R.I. Gen. Laws § 40.1-
“Developmental disability” is then defined, in part, as “manifested before the person has attained
In the criminal justice system more generally, there are many examples of courts and
legislatures recognizing that people in their early to mid-20s are not full-fledged adults. For
example, in Nebraska, the Douglas County Young Adult Court “is a judicially supervised program
that provides a sentencing alternative for youthful offenders up to age 25.” 10 There is also a young
adult court in Idaho, recognizing that the “18-24 [year-old] brain is unique,” due to the
Two more states include this factor for defendants who are under the age of eighteen, but as that
is now a complete bar to a death sentence, presumably they consider evidence of youth for those
over the age of eighteen as well. See Indiana, Ind. Code Ann. § 35-50-2-9(6); Montana, Mont.
Code Ann. § 46-18-304(g).
10
https://www.dc4dc.com/young-adult-court
58
“[p]refrontal cortex” being “not fully developed,” and that offenders in this age range are at high
risk. 11
In California, a young adult court serves people ages 18 to 25. These courts are based on
the growing body of research that “the prefrontal cortex of the brain—responsible for our cognitive
processing and impulse control—does not fully develop until the early to mid-20s.” 12 The young
adult courts acknowledge “are going through this critical developmental phase, many find
themselves facing adulthood without supportive family, housing, education, employment and
other critical protective factors that can help them navigate this tumultuous period.” Id. It
accommodates these differences because “traditional justice system is not designed to address
cases involving these individuals, who are qualitatively different in development, skills, and needs
In New York, a young adult court serves people ages 16 to 24 in response to “the latest
States are increasingly opening young adult correctional facilities to focus more on
rehabilitation and building life resources. They have done this in Connecticut (for 18 to 25 year
olds), Maine (for 18 to 26 year olds), and New York (a unit at Rikers Island specifically houses
18 to 21 year olds).
Other, non-legal examples of where society treats extended adolescents differently than
adults include rental cars, where rental car companies charge young driver fees to those between
11
https://www.nadcp.org/sites/default/files/2014/CG-12.pdf
12
http://www.sfsuperiorcourt.org/divisions/collaborative/yac
13
https://www.courtinnovation.org/areas-of-focus/youth-programs
59
eighteen and twenty-four, and healthcare, where young adults are allowed to stay on their parents’
interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’” Roper,
543 U.S. at 575-76. See also id. at 604 (O’Connor, J., dissenting) (“Over the course of nearly half
a century, the Court has consistently referred to foreign and international law as relevant to its
assessment of evolving standards of decency.”). The death penalty is not implemented at all in a
majority of other countries, let alone against extended adolescents. Although the number of death
sentences handed down globally increased in 2016, the trend towards abolition of the death penalty
continues, with 104 countries having abolished the punishment by the end of 2016 as compared to
64 countries which had done so as of 1997. Death Sentences and Executions 2016, Amnesty
International, at 24 (2017).
International, 37 percent fewer executions occurred worldwide in 2016 than in 2015. Death
Sentences and Executions 2016, Amnesty International, at 4 (2017). Saudi Arabia, Iran, Iraq and
Pakistan accounted for 87 percent of the global number of executions. Id. Two countries, Benin
and Nauru, abolished the death penalty for all crimes, and one country, Guinea, abolished it for
“ordinary crimes.” Death Sentences and Executions 2016, Amnesty International, at 9 (2017).
Other countries and the United Nations have also recognize that people are not fully adults
the moment they turn eighteen years old and that juvenile punishments, rather than adult
punishments, are appropriate to those in their extended adolescent years. For example, members
60
of the international community also recognized the need to treat youthful offenders as juveniles
rather than as adults in the criminal context. The United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules) require that “(e)fforts shall also be made to
extend the principles embodied in the Rules to young adult offenders,” and extend the protection
afforded by the Rules to cover proceedings dealing with extended adolescents. 14 The United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing
Rules”), Rule 3.3 & Commentary to Rule 3.3, adopted by General Assembly resolution 40/33 of
29 November 1985. 15
European countries’ treatment of people in their early 20s in the criminal context is
informative on whether the death penalty should be formally abolished for that age group in the
United States. In Germany, all young adults ages 18 to 21 fall within the jurisdiction of the juvenile
courts, but those courts have the option of sentencing according to the juvenile law or the adult
law. The German Supreme Federal court has further developed the law by ruling that a young adult
has the maturity of a juvenile if his or her personality is still developing; this logic has been used
to argue that juvenile justice options should be available for young adults up to the age of 24 years.
In 2014 the Netherlands enacted a law which extends the applicability of juvenile sanctions to
14
“A juvenile is a child or young person who, under the respective legal systems, may be dealt
with for an offence in a manner which is different from an adult(.)” Beijing Rules, Rule 2.2(a).
15
Available at http://www.un.org/documents/ ga/res/40/a40r033.htm.
16
In other European countries, youth between the ages of 18 to 21 are not subject to the jurisdiction
of adult courts. In Austria, for example, youths who commit offenses at 21 are subject to special
youth courts. Various provisions of the juvenile code, rather than the adult code, apply to these
offenders. Croatia, too, provides that persons ages 18 to 21 will be treated by specialized juvenile
courts and fall within the juvenile courts act. There are also reduced penalties for offenders under
21 years. European countries also distinguish extended adolescents at the trial court stage. In
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4. The Supreme Court’s own jurisprudence calls for the prohibition of
imposing death sentences on extended adolescents
As it can be established that the objective indicia treats older adolescents like their younger
peers, this Court must move on to the second step: Supreme Court jurisprudence.
As with adolescents under eighteen, death sentences imposed upon extended adolescents
have little or no penological purpose. They do not meet any of the three principal rationales of
“Rehabilitation, it is evident, is not an applicable rationale for the death penalty.” Hall, 134 S. Ct.
at 1992-93 (citation omitted). Thus, “capital punishment is excessive when it is grossly out of
proportion to the crime or it does not fulfill the two distinct social purposes served by the death
penalty: retribution and deterrence of capital crimes.” Kennedy, 554 U.S. at 441; Gregg v. Georgia,
428 U.S. 153 (1976) (noting that the death penalty should serve these “two principal social
purposes”).
“Retribution is not proportional if the law’s most severe penalty is imposed on one whose
immaturity.” Roper, 543 U.S. at 571. Indeed, “[i]f the culpability of the average murderer is
insufficient to justify the most extreme sanction available to the State (that is, if the State cannot
execute all murderers), the lesser culpability of the mentally retarded offender surely does not
Finland and Sweden there are no specialized juvenile courts; rather, these countries approach
punishment of all offenders from a rehabilitative standpoint. Still, offenders under 21 years who
are sentenced to prison get released after serving one-third of their time while adults are released
after serving one-half or two-thirds of their sentences. In Sweden, imprisonment for youth 21 or
younger is a last resort, and such offenders can be subject to the same supervision (called “youth
service”) as juveniles. As for terms of imprisonment, the maximum term for offenders 21 years
old or younger is fourteen years.
62
The reasoning of Atkins also applies here: the culpability and blameworthiness of youthful
offenders in extended adolescence are diminished to a substantial degree by their youth and
immaturity. American society recognizes the dual need to provide greater protections for this
group and to prohibit them from participating in activities where youthful impulsivity and
immaturity could put them or others at risk. The law does not grant these youth the same rights
and entitlements of adults; and for purposes of punishment, they should not be treated the same as
adults. Just as with juveniles under 18 years of age, research suggests that this group can mature
and “age out” of the recklessness and impulsiveness that can characterize this group of individuals.
The fact that this group can mature—can attain a better understanding of their own humanity—
necessarily means that they cannot be the “worst of the worst” so as to justify the ultimate sanction.
As for the rationale of deterrence, “it is unclear whether the death penalty has a significant
or even measurable deterrent effect on juveniles.” Roper, 543 U.S. at 571. “The same
characteristics that render juveniles less culpable than adults suggest as well that juveniles will be
less susceptible to deterrence.” Id. The Roper Court explained that “[t]he likelihood that the
teenage offender has made the kind of cost-benefit analysis that attaches any weight to the
possibility of execution is so remote as to be virtually nonexistent.” Id. Indeed, “to the extent the
juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment
of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a
young person.” Id.; see also Atkins, 536 U.S. at 319-20 (noting that the impairments of
intellectually disabled offenders make it less defensible to impose the death penalty as retribution
for past crimes and less likely that the death penalty will have a real deterrent effect particularly in
that population).
63
The reasoning about the lack of deterrence applies to individuals in extended adolescence,
too. Deterrence as a rationale for punishment necessarily requires a group to reflect upon the
consequences of its actions. People in their early to mid-20s suffer from the same impulsivity as
younger teenagers. They act rashly, without reflection and full consideration of the consequences
of their actions. They do not grow out of this behavior until their brains have fully formed. Like
seventeen year olds, adolescents in their early 20s also lack the self-regulation and executive
Capital punishment is only lawful if the offender’s “consciousness [is] materially more
‘depraved’ than that of any person guilty of murder.” Godfrey v. Georgia, 446 U.S. 420, 433
(1980). The characteristics of adolescents—for example, impulsivity and lack of full brain
development—so affect their individual responsibility and moral guilt that it categorically
lacked a fully matured adult brain in all the ways discussed above, Mr. Branch’s traumatic
childhood and history of adolescent substance abuse would have delayed his brain development
even more. The unique characteristics and experiences of an individual impacts the development
of his brain. “Youth who have experienced significant trauma and deprivation are especially prone
to developmental delays on these same dimensions of executive function and affective regulation,
with their situation being appropriately categorized as ‘adolescence squared.’” Garbarino Report
at 3. “If trauma occurs repeatedly and for a prolonged time, as it did for Eric Branch, it impedes
64
For Mr. Branch, these impactful experiences include the abuse and neglect he suffered, the
instability of his home life, and alcohol use. As Faye Sultan, Ph.D., found, these adverse childhood
Report of Dr. Sultan, at 21. “In the case of Eric Branch, his social history indicates he is just such
experiences of parental rejection, and physical maltreatment (including physical traumas which
Dr. Sultan described how the trauma Mr. Branch suffered impacted his brain development:
Eric Branch was exposed to chronic trauma within his home and within his
community. Traumas, and the resulting fear produced by such situations, are now
understood to undermine the development of a child’s brain. The brain adjusts to
patterned-repetitive experiences that are understood through the senses. Trauma
impacts brain areas like the amygdala (involved in emotion management) and the
hippocampus (involved in memory and memory consolidation).
Mr. Branch’s neurological development was also impacted by the consumption of alcohol.
The relationship between alcohol use and a developing brain is complex. Alcohol use is also related
to a young person’s brain not being fully formed, and concurrently alcohol use impedes
neurological development. Alcohol consumption is both a cause and an effect of the delays in brain
development.
According to Dr. Sultan, Mr. Branch’s brain development was impaired and delayed due
Mr. Branch, like other adults with chronic trauma, demonstrated difficulty with the
65
formation and maintenance of intimate relationships. He developed inappropriate
ways to deal with the people in his life. He had trouble expressing his emotional
needs, and he was distrustful of others to the extreme. In order to cope with his
unmet emotional needs, Eric Branch turned to alcohol binging and substance abuse.
***
Report of Dr. Sultan, at 20-21. “Deficits in executive functioning, specifically in the areas of
abstract reasoning ability and problem-solving ability have also been linked directly to adolescent
substance abuse.” Id. Because of this, “[t]he normal maturational process of the brain is disrupted
by the introduction of alcohol and other substances.” Report of Dr. Sultan, at 21.
According to Dr. Garbarino, “[w]hile such consumption by a traumatized person like Mr.
Branch has a self-medicative component, its significance . . . is that such a history additionally
impairs brain development for adolescents and individuals in their early 20’s.” Garbarino Report
at 5. “[G]iven the trauma and social deprivation that he experienced growing up and his immature
development, traumatized, impulsive, and socially inexperienced. But more than that, as a twenty
one-year-old, he was still years away from the developmental time when brains mature.” Id.
Based on medical and scientific developments conclusively showing that a person’s brain
is not fully developed until late in the third decade of life, the national consensus against the
execution of people in late adolescence—as shown through laws and practices—and legislation at
the local, state, and international level that protects people in their early twenties (and treats them
difference between a seventeen year old and someone like Mr. Branch, due to the biological
66
immaturity of their brains and their compromised functioning. No penological purpose is served
The execution of Mr. Branch, whose “cognitive and emotional development . . . was
significantly impaired and delayed,” Report of Dr. Sultan, at 21, would be unconstitutional. His
Claim 2: The needless suffering and uncertainty Mr. Branch has experienced during
his time on death row is in violation of the Eighth Amendment prohibition
against cruel and unusual punishment
I. There is no procedural impediment to this claim, which did not become ripe until
Defendant’s death warrant was signed, and the Court should therefore decide the
claim on the merits
There is no procedural impediment to Defendant’s Eighth Amendment claim that it would
be cruel and unusual to execute him after his particularly anguishing 24 years of confinement on
death row, during which his desperate attempts to obtain counsel to assist with his case went
repeatedly unanswered. This Court should decide this claim on the merits, and grant relief for the
Like a claim of incompetency to be executed, see Panetti v. Quarterman, 551 U.S. 930
(2007), or a broad claim that it would be cruel and usual to execute a prisoner who had spent an
inordinate number of years on death row, see Johnson v. Bredesen, 558 U.S. 1067 (2009) (Stevens,
J., statement respecting the denial of certiorari), Defendant’s Eighth Amendment claim did not
become ripe until his death warrant was signed and an execution became imminent. Because
Defendant’s claim is not only that his arduous years spent looking for counsel on death row
themselves give rise to an Eighth Amendment violation—but rather, that his execution, in light of
and on the heels of those years, would violate the Eighth Amendment’s prohibition on cruel and
unusual punishment—the claim “is measured at the time of execution, not years before then.”
67
Where a defendant’s claim does not become ripe until a death warrant is signed, the claim
should not be denied during under-warrant litigation on the ground that it is barred under the
Villareal, 523 U.S. 637, 644-45 (1998). Instead, the newly-ripe claim should receive merits
considerations, as it is the defendant’s first and only opportunity for such review. As the Florida
Supreme Court has observed, a claim that does not ripen until a death warrant is signed cannot be
ripeness grounds. See Griffen v. State, 866 So. 2d 1 (Fla. 2003). This makes sense because such
claims “mean[] nothing unless the time for execution is drawing nigh.” Tompkins, 557 F.3d at
1260. But, once a warrant is signed, the defendant should be afforded an opportunity for review of
Defendant could not have raised his Eighth Amendment claim in an earlier post-conviction
proceeding because it did not become ripe until the eve of this litigation. Under these
3.851(e)(2) would not only work a miscarriage of justice in this case but “would frustrate the
purposes” of the successive rules, and promote judicial inefficiency, by leading litigants to
inundate the state’s courts with unripe and premature claims. See Stewart v. United States, 646
F.3d 856 (11th Cir. 2011). As set forth below, Defendant has colorable arguments in support of
his constitutional claim that deserve this Court’s consideration. This Court should decide the claim
on the merits.
II. Mr. Branch has experienced needless uncertainty and suffering during his time on
death row
Eric Branch has been on death row for 24 years, and he has spent most of that time fighting
for competent legal representation. His days have been filled with uncertainty, never knowing
68
when he would finally receive a response from one of the many lawyers, law firms, and legal aid
organizations to whom he had reached. And his days have been filled with uncertainty whether the
governor would sign his death warrant, as he had done to so many of Mr. Branch’s friends over
the past 24 years. The United States Supreme Court recognized Mr. Branch’s predicament over a
hundred years ago, observing that “when a prisoner sentenced by a court to death is confined in
the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which
he can be subjected during that time is the uncertainty during the whole of it.” In re Medley, 134
U.S. 160, 172 (1890). As Justice Brennan noted, “The ‘fate of ever-increasing fear and distress’ to
which the expatriate is subjected, Trop v. Dulles, 356 U.S. 86, 102, (1958), can only exist to a great
degree for a person confined in prison awaiting death.” Furman v. Georgia, 408 U.S. 238, 289
(1972).
Although the United States Supreme Court has held that capital punishment does not
violate the Eighth Amendment, the Court also recognized that “the sanction imposed cannot be so
totally without penological justification that it results in the gratuitous infliction of suffering.”
Rather than speculating about the “ever-increasing fear and distress,” see Trop, 356 U.S.
at 102, Mr. Branch must have felt, he has made the point himself. Years of Mr. Branch’s letters
and pleadings serve as a remarkable documentation of his inner thoughts throughout his time on
death row. For example, when the District Court for the Northern District of Florida denied his §
2254 petition, Mr. Branch speculated that he only had seven months to one year of appeals left.
He wrote, “Assuming I win nothing than [sic] it’s up to the governor. It could be a week. It could
be 10 yrs after. But he can sign my warrant at any moment after my appeal expires.” Letter
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Excerpts from Mr. Branch to Leora Nosko-Passmore; his grandmother; his aunt, Connie Branch;
and his cousin, Alex Branch (2008 to 2013) (hereinafter “Branch Letter Excerpts”).
Mr. Branch panicked even more when the Eleventh Circuit denied his appeal, causing him
to fear that he would imminently end up on the “Ready List” – a list of death row prisoners
provided to the governor indicating they have exhausted all appeals and are ready for execution.
Mr. Branch explained, “Once I am on the list, staying there 3 months is normal. Remaining there
3 yrs is extraordinary. Meaning I have up to 3 months but less than 3 yrs to make something happen
or die.” Id. Shortly thereafter, Mr. Branch grew even more fearful when the United States Supreme
Court denied his petition for writ of certiorari, again writing, “There is no hope of lasting 3 years
on the Ready List for the simple fact they will run out of people on the list long before that and
have to kill me.” Id. Sure enough, Mr. Branch received notification that he was on the governor’s
The pressure started to weigh on Mr. Branch. His letters became darker, and he wrote,
“Most days I don’t even feel like opening my eyes. I am constantly tired, sad, lonely, hungry, and
generally miserable . . . .” Id. Almost a year after Mr. Branch’s certiorari petition had been denied,
he told his cousin, “I feel like somebody has been standing behind me with a gun to my head for
Mr. Branch also described what it felt like to have the men living around him taken away
The tough part is that now everyone they are killing has been here with me for 20
years. Its [sic] kind of like coming into work and finding every month another
person you’ve worked in the office with for 20 years has been taken out back and
killed. Even when it’s not you, it’s so much stress.
Id.
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In 2013, Florida passed the Timely Justice Act. It required the governor to issue a warrant
within 30 days of clemency denial, and to schedule an execution within 180 days of the warrant.
This caused utter panic on Florida’s death row, as the prisoners wondered how quickly their
executions would be processed and if there might be mass warrants. Mr. Branch described the
Now, every time the door opens, it falls quiet, everybody wondering if he did it . .
. signed all our warrants or is he coming after just one of us today . . . . Anybody
who survives this will be driven nuts, watching 120 people they know get killed,
wondering at each open door – am I next? It’s too much.
Exacerbating Mr. Branch’s anxiety was that most of his time on the row, he was
represented by inadequate conflicted counsel. See Part III, supra. In over sixty letters to his loved
ones, Mr. Branch lamented his lack of appropriate representation all through his state and federal
review. He reached out to local Florida and notional attorneys and organizations. See, e.g., Letter
from Mr. Branch to Michael Radelet. He filed numerous pro se pleadings, most of which were
stricken due to the representation by his conflicted counsel. Mr. Branch finally got some assistance
when he reached out to the American Bar Association’s Death Penalty Project in April of 2010.
See Letters from Mr. Branch to the ABA. However, it took the ABA more than three years to find
counsel for Mr. Branch, and by then his appeals were completely exhausted. Ms. Emily Olson-
Gault of the ABA wrote, “We recognize that if we had been able to find a law firm sooner – or if
Mr. Branch had received consistent, qualified representation from court-appointed counsel
throughout the case – his legal situation might be different.” See Letter from the ABA Death
During the years we were looking for pro bono counsel, Mr. Branch stayed in
frequent contact with the Project, asking about our efforts and urging us to not give
up trying to find counsel for him. He provided me with suggestions for lawyers that
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I might try to contact and kept me updated on legal developments in his case. . . .
He was as diligent and persistent in seeking representation and trying to preserve
his claims as any death-sentenced prisoner I have encountered in my many years of
working with the Project.
Id.
As the Supreme Court once stated about the death penalty, “one of the most horrible
feelings to which he can be subjected during that time is the uncertainty during the whole of it.”
Medley, 134 U.S. at 172. Mr. Branch’s letters put that uncertainty on full display, along with the
fear, paranoia, and tension familiar to those living under a death sentence—but exacerbated by Mr.
Branch’s lack of adequate conflict-free counsel. Executing Mr. Branch after those twenty-four
years on death row violates the Eighth Amendment’s prohibition against cruel and unusual
punishment, not solely because of the length of time he has been on death row, but because of the
psychological suffering he endured as he wrote letter after letter complaining about his attorney,
drafting pro se motions that would be ignored by the courts, and launching campaigns from death
row to find an attorney in the United States that would represent him – the whole time fearing that
CONCLUSION
For the foregoing reasons, Mr. Branch’s death sentence violates the Eighth Amendment. It
is unconstitutionally excessive because Mr. Branch’s age and under-developed brain at the time of
the offense prevented him from having the requisite culpability to be eligible for a death sentence.
It is unconstitutional, because Mr. Branch’s time on death row, anguishing over when he would
be killed and constantly having to seek legal representation, was cruel and unusual punishment.
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3. Allow amendment of this submission as may by just and proper;
Respectfully submitted,
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CERTIFICATION OF COUNSEL
Pursuant to Fla. R. Crim. P. 3.851(e)(1)(F), undersigned counsel hereby certifies that they
have discussed the contents of this motion fully with Defendant Eric Branch and have complied
with Rule 4-1.4 of the Rules of Professional Conduct, and that this motion is filed in good faith.
CERTIFICATE OF SERVICE
I certify that on January 29, 2018, the foregoing was served via the e-portal to Assistant
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