TI. .
VII. .
VIII. .
TABLE OF CONTENTS
Introduction
Overview
Personal Aspects
Social Aspects
Legal Aspects
Sentencing
Death Penalty
Prayer for Clemency
Appendices
THE CASE OF ALVIN FORD
The case of Alvin Ford abounds in.the elements of
tragedy--personal, social, and legal. It is the story
of a promising young man who believed he could succeed in the
American way of life--and was doing so in business, when he
experienced frustrations and disappointments, then failure and
despair. He plunged quickly and deeply into fast living, drugs,
and violence--for which he had been sheltered for so long by
a close-knit family experience. Then suddenly, he was caught
up in an event of terror, danger, and panic beyond his control,
his world burst with the gunfire of the moment.
Then, as he had before the event, he trusted his
companions--now even more than his lawyer, whose sympathies
he thought would run to the policeman who died in the shooting,
With whom his lawyer would identify his own son--with the love
Alvin Ford himself had known as. the son of devoted parents,
And so he kept to himself alone for many years the account of
what happened before and during the event--and only now can it
help, when the trial, conviction, and sentence are so many
years in the past.
The social, economic, and cultural faults of American
life that contributed to Alvin Ford's hopes, and also to brief
but terribly troubled months before the shooting, cannot be
changed to spare him--or the victim--now. Only clemency
can correct, in part, the consequences of that chain of events
that links the personal, social, and legal elements of tragedy.
Alvin Ford in life can serve usefully, as his youth
promised he would and as indeed he has already in his many
years in prison. He can remind us in life, so much better
than in the fleeting moment of his death, that we might have
served him and others, including the victim of the shooting,
a policeman, so very much better than we have.
OVERVIEW
Alvin Ford was raised in a close knit, warm and loving
family. His mother and his sisters and brothers (his father
is dead) are as devoted to him now, and he to them, as in his
youth. His experience in this family, in the small town
setting of Palmetto, produced in him a deep attachment to the
traditional values of the American way of life and many
admirable character traits, including ambition, independence,
integrity, a sense of fairness and justice, and especially a
deep concern for others. When he left home and a boyhood of
family, friends, neighbors and teacher to go out into the world,
he had been sheltered, ironically, from much of what
that world held for him. He knew nothing of what was in store
for him when the classic American tragedy of dreams, dissappoint—
ments, despair and destruction had run its course. Frustration
and depression, then failure and decline, brought him down
to the bottom of life. He sank quickly and deeply, into a
sub-culture of bad companions, dangerous habits and suicidal
despair.
Alvin Ford was thus set up by life for a tragic event
and its tragic aftermath, the full details of which remained
with him alone for many years afterward. Alvin Ford did not
disclose his account of what happened to anyone, not even to
his lawyer as his case went to trial. His lawyer, he thought
was the father of a policeman. (The attorney was, in fact,
the son of a policeman and a former FBI agent himself.) The
victim of the shooting for which Alvin was on trial was a
police officer, causing him to fear that his lawyer's sympathies
would be with the victim and that his own story would be turned
to his disadvantage. This was a tragic misapprehension
of the responsibility of a lawyer and the relationship of
lawyer and client, which assumes openness and trust. This
misapprehension grew out of Alvin's own experience in which
he knew how devoted his family, especially his mother, was to
him, and he projected these sympathies for a son onto his lawyer.
Instead of listening to his lawyer, he listened to his companions,
his co-defendants.
So Alvin Ford fell silent and remained silent. He did
not tell those he trusted most, his family, to spare them the
knowledge of what had happened. He preferred not to disturb
their belief that he was innocent. Only many years later did
Alvin tell his story, when a lawyer won his trust, and from it
has flowed the details of what happened before, during and
after the tragic event of July 21, 1974. Now, for the first
time, it is possible in this clemency proceedure to correct an
injustice yielded so tragically by the combination of personal,
social and legal elements.
This memorandum, benefitting from what Alvin has finally
revealed, will indicate several ways in which those personal,
oBin
social and legal factors influenced the course of his case
toward sentencing. It will point out experiences and events
from his past as well as procedures and rulings in his trial
by which the case was moved toward sentencing. Few of those
steps, where the legal process combines with the story of the
offense and the character of the offender, can be identified
as determinative when considered individually. But when taken
in their entirety, in light of what Alvin has finally told of
himself, and these events, these same steps can be seen to.
have produced a sentence that is highly inappropriate: -
This memorandum presents information that contributes
to a better understanding of Alvin's character and experience
than was known at the time of sentencing. It examines the
sentencing process in this case which took place when Florida
was experimenting with its new sentencing system. In addition it
scrutinizes the sentence itself for its fitness in the
broader context of capital punishment in Florida. It
concludes with a prayer for the grace that will grant the
commutation of Alvin Ford's sentence from death to life.
THE PERSONAL ASPECT
Alvin Ford grew up in a loving family, a close, deeply
caring and steadily supportive family that was troubled
only by an alcoholic father, with whom Alvin Ford had a
close relationship nonetheless. Alvin helped his father
build the house Alvin lived in until he was eighteen years
old. (Ford's Statement-10.) Alvin's mother eventually
divorced his father but Alvin continued to have a good
relationship with him, receiving at least one visit from
his father in prison. (Ford's Statement-15.) Alvin's
relationship with his mother, two sisters and two brothers
was much closer, resulting in regular visits by Alvin with
them after he had moved from Palmétto to Gainesville, and
by his family with him, after he was imprisoned. Alvin
was so strongly drawn to his home and mother that after
fleeing the scene of the shooting, he drove to Palmetto to
be there with her. (T-1337..)
Alvin's family was, and remains, a deeply caring
family. This quality became so much a part of Alvin that
it has expressed itself in many ways, even during his
prison years. In his correspondence with high school
students and friends he has counseled them to stay with
their studies and expressed concern for their problems. In
a letter to one youngster Alvin wrote, "I am sorry that you
have a D average. I will have to write to your teacher and
|
|
see if I can show him that at least you are trying. At
grade time let me know if you think my writing him has
helped." In a later letter he commented that it was good
your grades improved." (See Letters to Students,
Appendix J.) He wrote to a friend trying to make ends
meet that "The working two jobs I don't like too much."
He always asks questions indicating his concern for others
and pursues a problem until it is resolved.
One incident which reflects Alvin's caring nature
illustrates as well the tragic course his case has followed
at certain points that related curcially to his sentence.
Dr. Taubel, the psychiatrist who interviewed Alvin during
the trial for testimony in the sentencing phase, said at
one point in his testimony that Alvin did not care. "Yes,"
he stated, "he did not care. He didn't care." (T-1317.)
Dr. Taubel's testimony continued from that point:
I said, "how do you: feel right now, Saturday
afternoon? Last Saturday afternoon, the trial
was going on. How do you feel right now
compared to the way you felt when you were
depressed?"
"I feel fine."
"You are okay now?"
"Yes, I feel fine. Man, I really feel good."
Okay. I guess maybe I didn't look too good
because I shook his hand and I said, "Alvin,
you have been very cooperative." I said, "I
want to tell you what I am going to say to
the jury if I'm asked to say to the jury. I
think you ought to know. You spent three and
-2-
a half hours with me. You ought to know what
I'm thinking."
So I told him just what I am describing for you
today and when I was finished, I shook hands
and said goodbye, and he said, he said, "I'm
fine Doc. Don't worry about me. I'm just fine,"
and we parted that way. Oh, he said, "You're a
nice man, Doc. Don't worry about me."
That's the way Alvin Ford has been. That's the
way he's lived. (T-1337, 1338.)
Dr. Taubel was. right. That is how Alvin Ford has
been; how he has lived. But to take Alvin's expressions
there to indicate a lack of caring is to miss the real
character of Alvin Ford, who cared about the man with
whom he had spent three and a half hours, the man who
"d@idn't look too good" after such a lengthy interview.
Alvin has guided his two brothers, encouraging Roderick
to enter the military "because I don't want to see him
come the same way I did." (Ford's Statement-18.) Roderick
is now in the United States Air Force. His brother William
was much younger than Alvin, but as time has gone on, Alvin
has managed to guide William also, even in prison. "I let
some of these guys talk to him that's here, you know, that's
been here, that got 40, 50, 200 years, telling him about
what this place is about." (Ford's Statement-20.)
The role Alvin assumed with his younger brothers is
the role of a father-substitute for the alcoholic father
who was ineffective in his own life and who is now dead.
Alvin began taking his father's place very early in life.
32
He matured from his father's helper on handyman, masonry,
cement laying and other construction jobs, to his father's
full-fledged substitute on the occasions when his father was
unable to make it to work. "Sometimes he would drink and I
knew he would have jobs to do. And I would skip school and
go out and do the jobs for him." (Ford's Statement-14.)
Later Alvin sent money home whenever his mother needed help
and he could afford to give it. His sisters remember that
he was always concerned that they had clothes. Alvin's
supportive character is reflected in his efforts on behalf
of fellow inmates, and even visitors to the prison. Time
and again he has drafted grievances on behalf of fellow
prisoners and corresponded with lawyers to describe prac-
tices he finds unsuitable. (See Van Diver Memorandum,
Appendix E.)
Much of this activity on Alvin's part arises out of an
acute sense of justice and fairness. An early illustration
of this is connected with the only episode marring his
school years, which were free of disciplinary troubles other
than this one. He and a friend and teammate, Keith Smith,
skipped school and drove to Bradenton to get pictures that
had appeared of them in the newspaper. Upon their return
Alvin was expelled, he thought because he had been the one
with the car. "I guess he (the principal) figured I was
responsible for the other guy." (Ford's Statement-24.)
she
The other student, Keith Smith, was not expelled. "He was
a running back for our school," Alvin remembered. "He was
the top running back and I figured the reason he didn't
expel him was because they wanted him to play that Friday
in the game. And the school was known for -- what you
Sauna call it, win record?" (Ford's Statement-24, 25.)
Another episode indicates Alvin's belief that a wrong
can be appealed and made right.. This occured at a younger
age when he had entered a science project in the county
level competition, where it received no recognition.
A. The project next to mine didn't look as
difficult as the one I had, but it had got
third place. So I kind of got mad about
its
Q. And what did you do?
A. Well, I put up some protesting, and they
told me that, well, it would go to the
state level.
Q. And what happened at the state level?
A. Got honorable mention.
| Alvin has always played by the rules, as he did in
| that incident. When the schools were desegregated and
Alvin was transferred to Manatee High School, he wanted to
remain at Palmetto High School. He went to the school
board and was permitted to be transferred back home to
Palmetto, even though it cost him a year's athletic
eligibility. (Ford's Statement-23.) His advocacy of fellow
inmates and of himself has been conducted through
aie
bureaucratic channels, according to the rules, throughout
his years in prison.
Another episode anticipates later themes of critical
importance in Alvin's life. His only brush with the law
| as a juvenile was a neighborhood burglary, committed in
the companionship of friends. When out riding around one
| evening, some automobile parts were taken for a car he and
} his friends were rebuilding.
I think I was home when the police came by and
picked me and took me down to the city jail in
Palmetto, and I stayed there a couple days. _
Well, my mother and father came down and they
i were asking me about who was with me, you know.
And I wouldn't tell them. And they told the
Chief of Police to just let. me set in jail.
So, I wouldn't talk. And finally she -- she
came back a couple of days later and told me
that the two boys that was with me, they --
she looked out the front of the house and they
were out putting the car parts in her front
yard around the shrubbery and different things
in her yard. So when she told me that, I felt,
you know, that that might not be right. So I
went ahead and told who was with me and told
about the whole thing. (Ford's Statement-39.)
Despite three years of probation, this was an offense
so youthful and harmless in its nature that it was ignored
by the Department of Corrections when Alvin was hired as a
guard at Union Correctional Institute in Raiford.
Alvin's record is marred in those years only by these
minor incidents. He was very much the good boy remembered
years later. (See Statements of July 31, 1981, Appendix H.)
He was a good boy from a good family with good friends,
-6-
such as Keith Smith, who later went on to play. professional
baseball with the St. Louis Cardinals, Henry Lawrence, a
football player with the Oakland Raiders, and Al Washington
who is now a district manager for General Motors. (See
E. A. McCray's Statement, July 31, 1981, p. 4.)
Alvin's companions have been important to him, even
during detention before trial when there. was correspondence
among them by notes, one of which, from Alvin Ray Lewis, came
to the attention of Alvin's lawyer and was discussed during
the trial (T-699-702). Alvin seems to have relied heavily
on that note, which apparently urged Alvin to "stay cool"
and get another lawyer, which Lewis said his own family
could afford. Alvin, tragically, did "stay cool."
He was inexperienced with the law, having had only the
one juvenile incident from which to learn. He had been, he
recalls, represented by the public defender's office, but
had talked only with a probation officer, not a lawyer.
(Ford's Statement-39, 40.) Later he was arrested on a
warrant’ for a robbery, he was told, and taken to Manatee
County where he spent twenty days in jail. There he was
represented by a lawyer, but "when I got down there,
nobody really said anything to me other than Krautz (the
lawyer) came down and talked to me. And I was released.’
(Ford's Statement-40.)
Alvin grew up in the same neighborhood, traveling
infrequently except for occasional family visits. The only
aps
travel, other than for athletic events, were trips taken to
Bradenton to play basketball. (Ford's Statement-12.)
Then, as he put it, "When I was of age, I moved to
Gainesville." (Ford's Statement-12.) He was not, however,
a mature eighteen year old in every respect. Although he
had fulfilled many of the responsibilities of the man of
the house, he had been in other ways shielded by family,
friends and his community from experiences. that would have
served him well. He was set up for a tragedy, which hap-
pened when he found himself accused of murder and on trial
for his life.
His court-appointed lawyer, Robert T. Adams, son of a
police officer and a former FBI agent himself, was mistakenly
understood by Alvin to be the father of a policeman. The
victim of the shooting in’ which Alvin stood accused was a
policeman. Alvin knew the feeling of a parent for a son.
He had experienced the love and devotion of-his own parents
all of his life. He knew something of those feelings from
his own role and responsibility for his younger brothers and
sisters. ". . .I associated how would he feel if that was
his son that got shot. And I said -- well, you know, I just
can't talk to him, you know." (Ford's Statement-41.) The
result: "Well, I told him some things but I didn't tell him
everything." (Ford's Statement-41.) This may be compounded
by experiences of the event itself, as Dr. Amin indicates in
his report: "He experienced uncontrollable rage and subsequent
wf
amnesia for explicit details of the shooting, which is
consistent with a hysterical, dissociative reaction." (See
Dr. Amin's Report, Appendix B.)
This tragic misapprehension of his. lawyer's sympathies
and responsibilities has had profound importance in the case
of Alvin Ford. His trial and sentencing would not have
been so limited in information had Alvin not fallen silent
when he should have spoken.
While he would not talk to his lawyer because he did
not fully trust him, he would not talk to his family
either, because he loved them too much to bear to have
them believe that he was anything but absolutely innocent.
They continue to believe that.
Many years later a lawyer won Alvin's trust and
learned of what he would not speak when it had been so
crucially important, It is no less important today, even
though its disclosure has come so late.
THE SOCIAL ASPECT- —
Alvin Ford's story corresponds closely to the classic
American tragedy of dreams, disappointments, despair and
destruction. It begins with ambitions to attain the brass
ring of success and ends in the embrace of that culture of
drugs and violence that receives our losers, who then must
face the vengefulness of our reaction.
Alvin Ford began his life in poverty, his parents
employed at menial labor though always working. Alvin
Ford himself always worked, from childhood on, sometimes
with his father, sometimes with his mother, later with
employers.
Well, usually I would work with my father. And
while I was -- while I. was still in high school,
I was working part-time at night. And I worked
at a Red Lobster. restaurant while I was in high
school. And when I got out of school, I worked
there awhile and I worked with -- at Conley
Buick. That's in Bradenton. And -- with another
buyguy that did the same type of work my father
did, that lives in Rubonia. (Ford's Statement-25.)
Always, he observed those for whom he worked, acquiring
their values. Alvin continues to believe in these standard,
traditional American values, as his prison letters to
students indicate. He believes that education and hard
work will pay off, that if one only keeps trying the system
will work in return. He became very ambitious and began to
dream the dreams of success.
And success came, with progress from dishwasher to
cook in his first restaurant job. He went from the "opening
team" of the Red Lobster chain, traveling to new restaurants
to open them up (T-1329), to the big break that took him to
the Italian Fisherman in Gainesville, where he was soon
responsible as assistant manager for supervision of some
thirty to thirty-five persons. "Waitresses, bartenders,
cashiers, cooks, dishwashers, food service, stuff like
that." (Ford's Statement-27.)
With Alvin's quick climb up the ladder of American
business, well above the bottom rungs by now, came diffi-
culties.
I had a lot of pressure on me as far as trying
to do everything necessary that an assistant
manager should do, as far as I didn't go to
school -- didn't go to college in hotel, motel,
well, restaurant management. I didn't go to
school in doing, you know, that line, that
line of work, so I didn't know exactly if I was
performing my duties right, and it bothered me
a lot.
And I guess I tried my best to do the best I
could. It really bothered. I came to a point
where I had a nervous breakdown, I think. I'm
not sure. I saw a psychologist. (Ford's
statement-27.)
Perhaps his problems owed something to dyslexia, as Dr.
Taubel suggested, which made it especially difficult, indeed
all but impossible for Alvin to handle the mathematics of
his supervisory position, such as reconciling the cash
register and other book-keeping tasks. (T-1330, 1331, 1332.)
Perhaps it was the lack of specialized education in the field
of restaurant management. Or it may have been a matter of
rising too quickly, before the skills of lower levels had
2h,
been mastered and assimilated. In any event, Alvin began to
sense that he was not excelling. "It. was just my personal
feeling that I wasn't doing the best that possibly could be
done, you know. Just a feeling. And that feeling was
always in the back of my mind, and it really bothered me."
(Ford's Statement=28.) He experienced what he believed was
a nervous breakdown, so severe that he sought -- and got --
professional psychological counseling. (Ford's Statement-28.)
But his depression reached the suicidal point, as he attempted
to purchase a life insurance policy payable to his mother.
Well, I was really depressed to a point where --
I was really depressed to. a point I bought a
life insurance policy, I think it was $25,000. I
had contemplated committing suicide, but -- and
I had made the beneficiaries my mother and my
oldest sister, for -- I was having so many prob-
lems at the time, I just felt. like life wasn't
worth it -- I don't know. (Ford's Statement-29.)
Alvin experienced his first failure when he finally
left the Italian Fisherman, unable to handle the responsibi-
lities to which his career had carried him. He worked for
two weeks clerking in a paint store, unhappy with the
responsibilities that were so much lower than what he had
been used to.
Then he got a job at Union Correctional Institute, not
as good a job as he had had, but a second chance, another
hope. He resumed his efforts to translate his dreams into
reality by putting the traditional values to-work for him. He
began to think of a career in corrections. (T-1330.) He
idee
enrolled for courses and bought his_books. for Santa Fe Com-_. =
munity College (T-1330.) "T had went to Santa Fe Community
majoring. I was planning on going there, going to school at
night and working over at UCI during the day, but -- that
didn't work out." (Ford's Statement-21.)
When Alvin lost the job at UCI he slipped into the
familiar syndrome of joblessness, still trying to get work
but growing increasingly discouraged. (Ford's Statement-33.)
It was a time of recession and high unemployment, especially
in Florida in the industries in which Alvin had found
employment before. Finally discouragement became depression
and he truly "didn't care," as Dr. Taubel observed. (T-1337.)
It was for his future and his life that Alvin had stopped
caring, not for his family:or friends.
Alvin Ford was losing in life and he was received by the
sub-culture that welcomes America's losers. His decline came
fast and carried him far. He fell in with bad companions and
the company of cocaine, becoming a regular user. (T-1335.)
Due to his sheltered youth Alvin had never been exposed to
drugs before, a common experience for too many of our nation's
school children. He quickly became a heavy user of cocaine.
(Ford's Statement-34.) He lived a life of highs, the life
that Dr. Taubel described.
This man's behavior pattern suddenly reversed
itself and instead of being an essentially
responsible person who worked hard, long hours,
was rewarded with good pay and responsible
-4-
jobs, he suddenly became a real fat cat in
Gainesville. He is swinging. Man, but is he
swinging. He is going horseback riding in
the morning. Now, that is a. bit unusual.
He's got a lot of girl friends. Doesn't have
any men friends, except one.man at the Univer-
sity of Florida that he is close to, but
women, horseback riding, cars, out all night,
spending a lot of money.
He is acting, I said to myself -- he didn't
say this to me -- he is acting as if he were
eating, drinking, and being merry for tomorrow
you may die. He is acting as irresponsibly as
all get out. (T-1334.)
It is not difficult to imagine how: overwhelming the
street life, to which he had never been exposed, had to be
for Alvin. Along the way he inadvertently ingested the
drug PCP, or angel dust, which was mistakenly substituted
for the usual. cocaine at a party. (Ford's Statement-35.)
Afterwards he experienced the first violent episode of his
life, in which he fired a gun in his girl friend's presence,
(Ford's Statement-36, 37) terrifying them both with the
uncharacteristic nature of the act. Dr. Amin puts it this
way: ". . .the stress he ultimately faced in 1974 was
intolerable to him: no work, no income, mounting personal
bills, escalating demands from his family, increasing diffi-
culty in concealing his failures from his hometown friends,
and a cocaine and PCP alteration of his mental capacity."
(See Dr. Amin's Report, Appendix B.). Once again he tried to
buy a life insurance policy. (T-1335.) Dr. Amin's observa-—
tions on the life insurance purchase are as follows:
Symbolically, he wanted to be remembered for
having left something "helpful" in spite of
niBlus
the circumstances surrounding what he felt was
surely an impending death from his newly ac-
quired lifestyle. Mr. Ford appeared to be
suffering from a syndrome similar to battle
fatigue, commonly called "shell shock." Suffi-
cient stress can produce this aberrant behavior
in otherwise normal people... There is an ex-
treme vulnerability to psychotic acting out
during which time there is a temporary absence
i of the usual human sensitivities. (See Dr.
| Amin's Report, Appendix B.)
Soon he was engaged in the robbery that took such a tragic
i turn.
If Alvin for a time managed to escape the poverty that
grinds so many down at the bottom of American society, he
did not escape the effects of racial discrimination. Even
Dr. Taubel's testimony manifests a subtle, if unintentional,
racism.
He is the oldest son in a family of six, a
i black family of perhaps better than average
ability and more drive for success and achieve-
ment than I would estimate the average black
family to have had. (T-1328.)
He was making $190.00 a week and two percent
net profits commission. Pretty good pay, I
thought, and he thought, too, for an eighteen
year old black man in Gainesville. (T-1330.)
He comes from a family that is overstriving
beyond their means to achieve and accomplish.
He took the father's role as a young man,
became the responsible male in the family.
One has to realize that in the black culture
a responsible male is not the same thing, it
is not as common as in the white culture, by
any means. (T-1338.)
Such comments could only have diminished Alvin Ford in the
estimation of the all-white jury. Nor could the jury
respond but negatively to the references throughout the
“6-
I
i
trial to a "black male" by counsel on both sides. It would
be truly tragic if the racism alleged in the Department of
Corrections itself contributed to the loss of Alvin's job
at Union Correctional Institute. '"“He-had-to-ride-fifty————
miles from Gainesville to Raiford, each way, and he couldn't
make it to the job sometimes (because of mechanical problems
with his car) and his supervisor there, a white man, said
that, 'You are putting me on. You are joking. You just
don't want to come to work.'" (T-1333.)
I£ Alvin's family spared him exposure to much of the
adversity of life, he was confronted with it in the form of
the ugly mood at the trial. Officer Ilyankoff was the first
Ft. Lauderdale policeman killed in the line of duty. Were
the valve stems of his lawyer's car kicked out because Alvin
was black or because he had killed a cop? (Letter of Robert
T. Adams, Appendix c.) The vengeful gesture reflected the
sentiments expressed verbally in the comments in the local
newspaper by the reporter who covered the trial.
And so some piece of human garbage stood over him
and shot him to death as cooly as you or I would
brush a fly from our sleeve.
And if: some murderous thug comes at you with a
gun or knife and you shoot him, you're a brutal
cop. You've violated his rights. ..
- . .What: about the cop's civil rights. Doesn't
he rate life, liberty and the pursuit of happiness
the same as some sadistic savage whose entire role
in life is to cause misery for others?
It seems, in recent years, that the only time we
fies
hear about civil rights is when some bloody-
handed jerk is brought before the bar of
justice. (George McEvoy, Ft. Lauderdale News,
July 23, 1974, Local Section, p. 1, Appendix G.)
The media was present, even in the jury room, in the form of
several magazines featuring crime-oriented stories, one of
them an article entitled "The Law: Living on Death Row."
(Ford v. State, 374 So. 2d 496, Fla. 1979, p. 499.) More
generally the mood of the country was vengeful, with the
Vietnam War winding down, a President resigning in disgrace,
an oil embargo forcing drivers into long lines, unemployment
rising, and frustration and anger on all sides.
These social aspects constitute an important part of the
context of the case of Alvin Ford. Like the personal dimen-
sion of the case, these elements flow into the legal process
itself and contribute crucially to an understanding of the
events. and circumstances that yielded the sentence in this
case.
THE LEGAL PROCESS
The law runs a course by which a case moves by many
steps. At each of these the quality or quantity of evidence
is influenced; more or less information, better or worse
information is received for consideration by jury and judge
as to guilt, then as to sentence.
Prior to these steps in the fact-finding process others
took place which influenced the nature of the fact-finder,
the jury. At some of these steps decisions are made which involve
the interpretation and application of rules of law and in
some instances the scope of discretion to apply a rule or
not. All of these steps have influenced in varying degrees
the fairness of the jury, especially in its representative-
ness and objectivity, in the first instance, and the fullness
of the fact-finding process, in the next. Some of these
decisions were noted by objection or by motion by defense
counsel; others were not. Some were presented to the trial
judge as the basis for a motion for, a new trial; others were
not. Some were appealed to the Supreme Court of Florida;
others were not. And some were taken to the United States
Supreme Court on petition for writ of certiorari; others
were not. Some few of the issues joined in the reviewing
process were resolved favorably to the deéfendank; most were
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not.
The resolution of any one issue unfavorably to Alvin
Ford would not have been determinative of the outcome on the
issue of guilt, although the issue of the impeachment of the
only eye-witness by her prior inconsistent statement, would
surely have been crucial to the question of guilt, for
it involved the very identification of the person who fired
the third shot. The cumulative effect of all those other
decisions, however, which were resolved unfavorably to Alvin
Ford, may have been determinative on the question of guilt.
The cumulative effect of those decisions resolved unfavorably
to him surely has been determinative on the question of his
sentence.
The obligation of an appellate court is to scrutinize
each such ruling that is called into question in the regular
course of the legal proceeding and to determine if the decision
made at that step in the process accords the rules of law.
The job of the appellate court, even the highest court of
the state or nation, is discharged when it has held that the
trial judge ruled--or did not rule--according to the law.
The appellate court is not concerned about the whole of a
case, the cumulative effect of the many steps in the legal
process, The executive, however, is able to keep the totality
of a case in view. The executive can and must ask the
question, was it right for the case to come out as it did,
On
given the course it followed and the cumulative effect of
the many rulings made during its course of movement?
Was justice done by the quality of the process in its entirety,
including its appellate review?
All of this is to say nothing of the intangible qualities
of a case, about which little can be said until time has
passed and the case is in perspective, a perspective the
appellate courts do not have--or take--in their legalistic
review. The overall review of the whole of a case is not
a function of an appellate court, which necessarily views
cases legalistically; but is a function of the executive,
vwwhich views cases with an eye to the fundamental justice of
the outcome. The executive views cases not so much with
the mind's eye to the rationale of a given décision but
with the heart's eye to its fitness. The executive must
have at the ready an exquisite sense of doubt, to discern
with acute sensitivity whether a verdict and sentence are
reflective of justice. The American Law Institute must
have had in mind such a sensitivity of doubtfulness in its
provision for exclusion of the death sentence when such
uneasiness exists:
(1) Death sentence excluded. When a
defendant is found guilty of murder, the Court
shall impose sentence for a felony of the first
degree (not death) if it is satisfied that:...
(g) although the evidénce suffices to
sustain the verdict, it soes not foreclose all
doubt respecting the defendant's guilt. (Section
201.6 (1) )
-3-
If the American Law Institute would have that made available i
the trial judge, then it must be even more applicable in
principle to the executive in clemency because the spirit
of that provision accords so well with the. function of clemency.
The executive, unlike the jury, may entertain doubts that
are more subtle less than those which justify a verdict of
acquittal for failure to meet the burden of proof in criminal
cases.
In the case of Alvin Ford, when the case is taken as
a whole, when the cumulative effect of all of its steps of
shaping the fact-finding (the jury), the finding, the facts,
are taken into account, a lingering doubt remains. It
weighs heavily in the scales of sentencing.
At this point several of those steps will be reviewed,
to note some limitations, some weaknesses in the process by
which Alvin Ford's case moved along its course. First, the
jury's representativeness of the community will be shown to
be limited in terms of its racial composition and sentiment
on the death penalty. Second, the jury objectivity will be
shown to have been subject to influence by publicity and
outside communications. Third, that. in the fact-finding
process itself, the quality of three important pieces of
evidence will be examined.
As observed before, most of these, which have been in
appellate review, have been resolved unfavorably to Alvin
—~4-
Ford. No one of them--with the exception of the impeachment
of the eye-witness testimony--can be said with confidence
to have been determinative. But it is the quality of the
process taken altogether that is the point of this review.
The racial composition of the jury cannot be ignored
in this case. Step by step in the jury selection, defense
counsel notes that there were no blacks. (T-64, 248)
The jury ended up all-white. In addition, it heard
reference throughout voir dire and trial, dozens of times,
to the terms "black male" and "colored boy" and other
racial expressions, including "black chick".
No less important was the inadequacy of the jury
a. selection in respect to the defendant's rights in
Witherspoon not to have prospective jurors opposed to
capital punishment automatically dismissed for cause.
{ The weakness of the process in this fespect is revealed in
the method followed. The Court read an instruction to
the panel on the Witherspoon requirements (T-122), then
asked for a show of hands and excused the twelve who
raised their hands in response, defense counsel noting
that he would question them because the Court's instructions
“are meant to be clear but sometimes they are confusing as
all get out." (T-124) The Court withdrew its excusal of
the twelve (T-125), so counsel could inquire, which he
did by addressing the panel as a whole (T-126), but on
-5-
the issue of the new Florida statute, rather than the
Witherspoon requirements, stating at one point, "I am confused
too;" (T-129) then getting into the Witherspoon requirements,
and finally asking, "Is there anyone of you who still feels
that you could not give this defendant a fair trial because of
some inner feeling, or perhaps concern about that possibil-
ity of the death penalty being imposed by the Court?" (T-129
A veniremen said, "I don't want to be responsible." (T-130)
Adams asked, "You still don't want to sit on this jury
because of the law that might be applicable; is that it?"
(T-130) Adams opposed the challenge, but the Court excused
them all. Then the same venhiremen said, "I'm sorry, Your
Honor, I was a little confused by the wording on that.
Does that mean that we are not willing to be on the jury
on account of the death penalty or the second clause?"
(T-131-132) Another, referring to the judge's explanation,
said, "In my mind it wasn't that way. It being what the
case is; if I didn't think that absorbing all that, that
I could come up with a fair verdict." (T-132) Yet another
said, "That is the same think (sic) differently." (T-132)
Then the Court, "In an abundance of caution again," took
their names and excused them. It is clear from these
exchanges that the prospective jurors did) not understand
the judge's instruction, that the polling of the panel for
a show of hands was inadequate in revealing their capacity
aalies
to function in accord with Witherspoon, and that they were
not interrogated any further, either individually or collec-
tively, in any way as to reveal that. Hence, the defendant
was denied the right to have such jurors as there might
have been among them who could function accordingly.
There were 12 so excused from the first panel of 29.
The Court was not insensitive to prejudicial influences
on the jury, because it dismissed the first panel of jurors,
who had been able to see the shackles on Ford under the
table where he was sitting, an indication as well of heavy
security. (T-105-110)
Far more important was prejudiced outside influence
through the media. Defense counsel first brought up
sequestration of the jury on the first day of the trial,
but the Court resisted it, “even though there are emotional
attitudes, political implications. This isn't Watergate."
(T-28) The motion was made later but denied. The publicity,
however, as revealed in the clippings from the’ local newspaper
(See Appendix G.), indicate heavy prejudicial publicity of
the sort that would infect the entire atmosphere of a
i
1
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community, as the judge noted, hence of the criminal trial
itself. There is serious doubt, despite the formal questions
and answers in voir dire, to say nothing of the high number
of challenges for cause on this score, that the jury was
| not biased by pretrial publicity and by publicity during drial.
whe
At one point Adams brought to the Court's attention
some local radio and television commentary he had heard
pertaining to the case, including one which "came on with
another jibe in the nature of an editorial which was, in
my opinion, critical of court personnel for allowing this
thing (shackling of Ford) to have happened." Urging that
it might likewise affect prospective jurors, Adams renewed
his motion to sequester the jury. The trial judge said
this:
| In any event, there is no question in my
| mind that there was a considerable recitation of
| the shackles situation, and I know I am not a bit
concerned about the critical aspect of it. I
| admitted to it very candidly and it may certain-
ly may have very well been my fault for not having
cured it.
| Nonetheless, it occurred. I surely don't
t want to declare a mistrial and set this thing
| over for your consideration but I tell you that
| possibility exists in my view. (T-235-236)
|
i
The effectiveness of sequestration, even change of venue
(i£ it had been proposed), is doubtful because it was not
possible even to keep crime-oriented, indeed capital punish-
ment-oriented reading material out of the jury room itself,
as pointed out earlier.
Finally, without sequestration one juror did have
contact with outside persons but told the Court, when
called out of the jury room to do so, that nothing had been
discussed other than the mere mention of his membership on
the jury.
The Florida Supreme Court said:
..-the transgression allegedly committed by the juror
is not the evil at which sequestration is directed.
Sequestration is designed to keep the jurors insulated
from improper influences during the course of the
trial; the phone call suggests that Huber had made
up his mind before trial and was attempting to
express his views to others, not vice versa."
(Ford v. State, 374 So. 2nd 496,5000)
The Court observed that Huber was not dismissed and replaced
with an alternate, as if that cured the problem. The important
result in retrospect is that Huber's experience, "called on
the carpet" of the Court, could not have made him anything but
antagonistic to the defense and the defendant, hence less
likely to decide objectively on guilt or on sentencing.
Of the major pieces of evidence, one was a statement o£
the defendant, given to the police. There was a motion to
suppress that statement and a hearing on December 6, 1974.
The Court announced on the opening day of trial:
the Court found that the requirements of the
so-called Miranda rule had been met and these
statements attributed to the defendant were
freely and voluntarily made.
But the circumstances surrounding. the taking of the statement
do bear notice. The officer taking the statement, in a six-
seater plane, sat directly across form Ford and another sat
alongside him. The police detective acknowledged in his testimony
that Ford had requested an attorney:
A.: I was aware they. had given him permission to
contact an attorney up in Jacksonville; yes
sir.
Q.: You were also aware he was unable to talk
to his private lawyer?
A.: I was.aware of that; yes, sir. (T-1139)
The officer acknowledged that he went ahead and talked with Ford,
that he knew Ford had tried to contact his lawyer but could not
reach him, that Ford would not give a written statement, that
| he did not give a written waiver of his right to an attorney,
| and that the officer made no notes of the conversation (T-1140-1141)
--all of this in a six-seater plane, at 5:30 a. m., surrounded
by police officers, no one else present, approximately twenty
hours after the shooting, after hours of driving about Florida.
(T-1131)
The testimony of co-defendants was important in the case
against Ford. The unreliability of such testimony needs little
Hl comment. Some are in order,. however, with reference to one of
them. George DeCosta was extremely unreliable, causing even
the State Attorney "to have George Angelo DeCosta considered
a hostile witness and I would like to impeach him." (T-591)
Later the prosecutor stated to the Court: "On November
26th, he gave me a lengthy statement and I am surprised and
appalled by his lack of truthfulness as to what he is saying
“iG=
Q.:
Aw:
Q.:
Q.:
in this courtroom." (T-594) In addition DeCosta pleaded
guilty and three days later made his statement to the prosecu-
tor. (T-624) Finally, this exchange occurred between defense
counsel and DeCosta:
Well, kind of sum it up for the jurors
and the Court, George. How come you finally
made these statements that you made, these
five statements culminating in the one that
Mr. Satz here, the prosecuting attorney,
took; why did you do that?
The five?
Why did you make those statements that I
asked you about earlier, the last of which
was the one to Mr. Satz?
How you mean after the one I made to Mr. Satz?
How come you talked to the police and gave
them statements throughout this proceeding
those four or five times that we talked
about earlier; why did you do that?
I don't really know.
KKK kK KKK
I will ask you one more time. Do you know
why you made those statements to the officers
and Mr. Satz?
I know why I made it to Mr. Satz.
Well, that was because you made an arrange-
ment for a quilty plea with your lawyer and
the prosecutor; isn't that it?
Yes, Sir.
To second degree murder?
ae
A.: Yes, sir.
Q.: “Now, why did you make those statements
to the police officers, one of whom
had shot you while stripped and hand-
i cuffed?
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A.: Because they threatened me.
|
i Q.: Because you were threatened?
: Yes, sir. (T-647-648)
Of major importance is the question of the impeachment
of Mrs. Buchanan. This step in the process will be taken
up in detail later in the discussion of sentencing.
One response to this review of a legal process exhibiting
limitations along several of its dimensions is of course
that the criminal trial is a human institution. The trial
t judge put it in the usual way at one point, in connection
with the possibility that prospective jurors had been
influenced by publicity:
It is pretty well settled law that even in first
degree cases that the defendant is not guaranteed
a perfect trial. Human beings being what they
are, I don't know of any way to give him a
perfect trial. All he is entitled to is a fair
trial, as I understand the law. (T-236)
But that is precisely the point: the criminal trial is
not perfect; it is far from perfect. This is all the more
reason for caution when it comes to carrying its product--
a conviction”™and sentence--to the level of irrevocable
ee -12-
consequence, the death penalty. This is precisely why the
American Law Institute has proposed one final check on the
movement of a case toward the death sentence, a check that
would empower even a judge to withhold the death sentence
when he has that lingering sense of doubt about guilt
itself. The doubt that justifies withholding the death
sentence after guilt is established should be so much more
subtle, and it is to that stage of the process that this
memorandum now turns.
eae
THE SENTENCING PROCESS
Clemency, by its nature as "an act of grace proceeding
from the power entrusted with the execution of the laws"
(Rules of Executive Clemency of Florida,. September 14, 1977),
is not confined by laws nor is its exercise dependent on
laws. It is unlike the judicial power,. which is rooted in,
bound by, and thoroughly preoccupied with laws. Yet some
attention must be given here, in a "legalistic" way, to
certain matters of law: the statutory schedule of factors,
or circumstances, by which the sentencing decision is guided
in capital cases.
The law of Florida in Section 921.141 clearly evinces a
legislative intent that Florida's policy that certain capital
felonies. may be punished by death must be implemented with
the utmost care and caution, lest a life be taken wrongfully.
In subsection (1) of Section 921.141, which provides for
a separate sentencing proceeding, it is stated that "evidence
may be presented’ as to any matter’ that the court deems rele-
vant to. the nature of the crime and the character of the
defendant and shall include matters relating to any of the
aggravating or mitigating circumstances enumerated in subsec~
tions (5) and (6)." This suggests that the evidence on which
the sentence is to be based is not limited to matters
relating only to the specified circumstances. But the
statute goes on to state in Subsection (5) that "Aggravating
circumstances shall be limited to the following, ... ." --
that is, to those aggravating circumstances specified in the
statute. The scope of evidence of the nature of the crime
and character of the defendant is not so limited, not only
because’ Subsection (6) states that "Mitigating circumstances
shall be the following," -- that is, the mitigating circum-
stances specified in the statute, but also because the
Supreme Court of the United States has so held in Lockett,
438 U.S. 586 (1978), which the Florida Supreme Court has
followed in Songer, 365 So. 2d 696 (Fla. 1978).
The law in Subsection (2) provides for an advisory
sentence by the jury based upon "whether sufficient aggrava-
ting circumstances exist as enumerated in Subsection (5)."
The jury must also decide "whether sufficient mitigating
circumstances exist," including but not limited to those
enumerated in the statute. It is important to note that the
requirement is for sufficient circumstances, not merely the
existence or presence of such circumstances. The intention
of the legislature is clearly to require of the jury a dis-
crimination between any circumstances which might be of an
aggravating or mitigating sort and which happen by their
nature to fit the statutory category on the one hand, and
circumstances which are sufficient. The nature of the circum-
stance is necessary but not sufficient. The obligation on
the jury is thus to weigh the evidence of such circumstances.
This includes not only the aggravating and mitigating circum-
-2-
stances. against each other but the evidence within each
enumerated category of circumstance. This is the analytic
exercise that is imposed upon the jury. The evidence of
the jury's analysis is an advisory sentence stating that it
has so found, that the mitigating circumstances do not
outweigh the aggravating circumstances, and that the
sentence should be death and not life imprisonment.
This is a recommendation the court need not follow. If
the court does not follow the recommendation it must itself
weigh the aggravating and mitigating circumstances and then
enter a sentence based, in the case of the death sentence,
on a specific written finding of fact based upon the circum-
stances in Subsections (5) and (6) and upon the records of
the trial and the sentencing proceedings.
It is clear that the legislature intended a weighing
process involving sufficiencies and not merely an-indentifi-
cation or enumeration coupled with a counting of so many on
the one side, so many on the other. It is not clear that the
legislature intended a full discussion of the findings of
sufficiencies and insufficiencies in the weighing process.
It is, however, in the spirit of the proceedure that such a
discussion would occur, especially because the ideas that
were "in the air" at the time of Furman and the early
legislative responses to it suggest that the legislature had
in mind a judicial decision-making analysis somewhat like
the one which was described in Judge Marvin Frankel's widely
Be
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discussed 1972 lectures, which were later published in his
book Criminal Sentences, in which he described the process
by which judicial sentencing decisions would be made
according to "codified weights and measures."
The sentencing judge commonly faces a decision
within a huge range -- for example, anything
from probation to twenty-five years in prison
for armed robbery of a federally insured bank.
In deciding where to fix any particular sentence,
he will presumably consider a host of factors in
the case: the relative seriousness of the parti-
cular offense -- the degree of danger threatened,
cruelty, premeditation; the prior record of the
defendant; situational factors -- health, family
disturbance, drug use; the defendant's work
history, skills, potential, etc. In the existing
mode of handling the sentence, the judge is under
no pressure -- and is without guidelines --
toward systematic, exhaustive, detailed appraisal
of such things one by one. He probably does not
list them even for himself. He certainly does
not record or announce the analysis. Probably,
in most cases, he broods in a diffuse way toward
a hunch that becomes a sentence. It may be a
lenient or a harsh sentence. But even that can-
not be stated with vivid meaning. Only other
hunches, equally unstructured, supply the stan-
dards of comparison. And there is, of course,
no explicit course of reasoning anyone -~- an
appellate tribunal, for. instance -- could
rationally approve or disapprove.
The partial remedy I propose is'a kind of detailed
profile or checklist of factors that would include,
whenever possible, some form of numerical or other
objective grading. Still being crude and cursory,
I suggest that "gravity of offense" could be
graded along a scale from, perhaps 1 to 5. Other
factors could be handled in the same way. The
over-all result might be a score -- or, possibly,
an individual profile of sentencing elements --
that would make it feasible to follow the sentencer's
estimates, outweigh them, and compare the sentence
in the given case with others. (Criminal Sentences,
pp. 113-114)
-4-
The analysis of aggravating and mitigating circumstances
in Alvin Ford's case was far from this kind. The court
instead merely identified items and declared certain stated
things as "FACT," following each statement with a "CONCLU-
SION." This was perhaps the best that could be done in the
early experimental days of Florida's new capital sentencing
system, but surely it was not in the spirit of the legisla-
ture's intentions as indicated by its requirement of a
weighing of the circumstances.
Without reasoned analysis by the sentencing authority,
it is not only difficult but often all. but impossible to
analyze adequately the decision which is the subject of
review. This is why the Florida Supreme Court called for
reasoned judgment, not discretion, in the sentencing process
in Raulerson, 358 So. 2d 826 (1978). The sentencing in
Ford's case falls far short of this.
In the clemency review, there is no requirement that this
decision-making procedure be reviewed, let alone replicated.
But it is so important that these dimensions of Alvin Ford's
case be understood clearly that it is necessary to examine
the aggravating and mitigating circumstances’ one by one,
because the trial judge found each and every one of the aggra-
vating circumstances and not a single one of the mitigating
circumstances.
The Aggravating Circumstances
The Supreme Court of Florida, in Ford v. State, 374
So. 2d 496 (Fla. 1979), dismissed three of the findings:
(5) (a)-- capital felony committed by a person under sentence
of imprisonment; (5) (b) -- previous conviction of another
capital felony or of a felony involving the use or threat of
violence to the person; and one or another of (5) (d) --
capital felony committed in the course of certain offenses
including robbery, and (5) (f£) -- capital felony committed
for pecuniary gain. The court's opinion is not clear as to
which one of the last two should stand, because "considera-
tion of the appellant's conduct as two independent aggrava-
ting factors is faulted by our ruling in Provence v. State,
377 So. 24 783 (Fla. 1979)" -- and this. holding does not
say which of the two factors remains after their merger.
But an aggravating circumstance consisting of. an underlying
felony by which a less-than-capital homicide is converted
first into a capital felony, then into a presumptive death
sentence, cannot have been intended by the legislature. It
would permit the underlying felony to be employed once
again, in a pyramiding fashion, to convert a less-than-
capital homicide automatically into a death sentence, and
the legislature could not have intended such an anomaly.
If Provence forbids doubling among the aggravating circum-
stances horizontally as it were, then a fortiori, that
-6-
reasoning forbids vertical doubling. The legislature,
knowing that the history of felony-murder is strewn with
tens of thousands of miscarriages of justice, could. not
have intended the possibility of a compounding of this by
introducing an aggravating circumstance that automatically
bootstraps a non-capital homicide not only into a capital
felony but into a death sentence. So, fundamental fairness
requires that the underlying felony circumstance be put aside
and reserved for a case where its use is proper.
Of the remaining factors, the court said that "the
evidence convinces us that the other five aggravating
circumstances may properly be said to exist in this case."
(p. 503) Those five include the one discussed immediately
above, which will be put aside at this point. Three others
were not addressed by the court beyond that statement. The
issues with respect to all of these were joined in the
petition and response in the certiorari proceeding but
were not resolved by the denial of the petition. They are
still very much at issue.
Subsection (5) (c) -- knowingly created great risk of
death to many persons, was examined in the Kampff case, 371
So. 24 1007 (Fla. 1979), in which five shots were fired in
a bakery where two people were present and others were in
the general area. In Ford's case, apart from the victim
himself, the only other person in the area was a woman in a
te
room within the restaurant building itself and behind a
door. In Kampff the court said "great risk" means a high
probability of death; moreover, death to many persons,
which means more than a small number (pp. 1009-1010).
The intent of the legislature was to provide for the situation
of a bombing, not a shooting within a confined area in which
only one person is present. In addition, this factor
requires that the "great risk of death to many persons" be
created knowingly, and as the memorandum will indicate later,
there is grave doubt on Alvin Ford's state of mind.
Subsection. (5) (e) -- capital felony committed for
purpose of avoiding or preventing lawful arrest or effect
escape from custody, and Subsection (5) (g) -- capital felony
committed to disrupt or hinder the lawful exercise of any
governmental function or the enforcement of laws, must be
merged because they refer to the same action of the police
officer. The Florida Supreme Court. in Clark v. State found
the doubling of these factors to be improper. The specific
intent suggested by the word "purpose" in (5) (e) which is
implicit in (5) (g), must be viewed in connection with the
testimony of the witness, to be presented below, as to
whether Alvin Ford could reasonably be said to have had any
intention to shoot the policeman as an officer of the law
or in the exercise of his functions.
Finally, Subsection. (5) (h) -- capital felony especially
=Be
heinous, atrocious, or cruel, was the one aggravating factor
the court upheld with reference to specific facts. It said:
The testimony of Mrs. Buchanan was that Officer
Ilyankoff, after being wounded.twice, was shot
a third time when he posed no danger to Ford's
escape and was in fact trying to cooperate with
the armed appellant. We therefore make the
\ specific finding that the killing was "especially
i heinous, atrocious, or cruel" under section
921.121 (5) (h), Florida Statutes (1975).
It must be said that the cases decided by the Florida
Hl Supreme Court itself do not support this conclusion, even
when the central facts: are taken as strongly as they are
stated there. Thus, it is the melancholy task of the exe-
cutive in clemency to correct for the errors even of the
Supreme Court itself, for the court has held as follows on
the circumstances of "heinous, atrocious, and cruel" circum-
stance. In Fleming, 374 So. 2d 954 (1979), the court held
i that the murder of a police officer is not in and of itself
heinous, atrocious, or cruel. In Lewis, 377 So. 2d 640
(1979), the court held that shooting a victim who is already
i wounded, shot once in this instance, and then shot in the
back while fleeing, is not heinous, atrocious, or cruel. In
Sullivan, 303 So.. 2d 632 (1974), the court found an "execution-
type slaying" in which the victim's hands were tied behind the
back; there was a beating, and finally a shooting. However,
in Riley, 366 So. 24.19 (1978), the court held that shooting a
victim while bound and gagged is not heinous, atrocious, or
cruel. In Menendez 368 So. 2d 1276 the court held that
ade
i shooting a storekeeper twice while his arms were held sur-
renderingly was not Heinous, atrocious, or cruel. Finally,
in Kampff, 371 So. 2d 1007 (1979), the court held that a
pistol shot at the head of the victim was not heinous,
atrocious, or cruel. These cases contrast sharply with
Alvin Ford's, even as it is generally described by the
court as above. The contrast is even sharper when the
contents of the eye-witness testimony are set out in detail.
Barbara Buchanan was. at work that Sunday morning, about
8:15 a.m., when she heard a scream (T-749). She came out of
the kitchen and exited by a side door (T-750), ran to the
rear of the building, and was stopped by a young man with a
| vifle who told her to "get back inside and be cool." (T-751.)
She saw her co-worker: being chased by another young man
(T-751), caught and brought back to the restaurant (T-767:
cross examination). Buchanan herself was taken to the rear
i
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| door by the young man with a rifle. She saw another co-
| worker in the kitchen being held by the arm by another young
| man (T-752).
| Mrs. Buchanan was then put into’a room outside the
kitchen with a slatted or louvered door, which was closed
(T-753). She saw the policeman arrive and approach the
kitchen door carrying a clipboard: and keys (T-757). The
door was wedged open with an apron (T-757), which had been
\ thrown there before the officer's arrival (T-769: cross
=TO=
examination), thrown from the inside (T-770: cross-examination) ,
while she was inside the utility room (T-770: cross-
examination). She saw him open the door with his right hand,
whereupon she heard two shots and saw him fall back outside
the door (T-757). She then heard him call on his radio that
he had been shot (T-758). Then she saw him "while he strug-
gled himself up almost against the wall." (T-758.) She
saw Alvin Ford come out, go to the police car, and come back.
(T-758.) He asked for the keys, saying, "Man, where are
i your keys?" The police officer replied "I don't know."
| Alvin Ford again asked, "Man, give me your’ mother fucking
keys." Buchanan then saw Ford pick up the keys and "Then
: he shot the policeman." (T+759.) It was. "in the head."
(T-759.) “He was standing right to him." (T-759.) Ford
then took the officer's gun from his holster (T-760) and went
{ to the police car. "He ran and jumped in the car" (T-762)
and left (T-760).
1 In contrast to the Florida Supreme Court's. description
of the event, Mrs. Buchanan's testimony states that the
officer had been able to radio that he had been shot and
then raise himself up -- not clearly a policeman posing no
danger; moreover, her statement indicates no attempt to
cooperate -- merely that Alvin Ford picked up the keys.
The court has made inferences from the testimony that are
not warranted by the facts as established in that testimony.
eiia
Mrs. Buchanan's testimony must be discounted to some
degree by the feelings of terror she must have experienced,
only a louvered-door away from such a scene. That she could
have peered through the slats at all, in such a moment, is a
remarkable feat, let alone observe -- and later describe --
the event in any degree of dependability.
The confidence level of Mrs. Buchanan's testimony is
lowered even further by her acknowledgment of having had
four conversations with the police in connection with her
visits to the line-up (T-784: cross-examination) and that
she had talked more than once with the prosecutor (T-785:
cross-examination). She admitted that her stories differed.
Question by Mr. Adams: "With regard to these
three or four times you talked to the officers
and at least a couple of times with Mr. Satz,
did your stories differ, at least to some
extent, considering all of those statements?"
A. "Yes."
Q. "They did; correct?"
A. "Yes."
Béyend this, Mrs. Buchanan's testimony produced a re-
markable Catch-22 of the law that could not but work to Ford's
disadvantage. After cross-examination of Mrs. Buchanan was
completed and she was dismissed as a witness, Ford's lawyer
learned from other lawyers over lunch: that she had made an
inconsistent statement at a bail hearing (T-1016, 1017),
which the State Attorney later did not deny (T-1146).
-12-
He sought to have her recalled to lay the foundation for
impeachment by prior inconsistent statement, but his request
was denied upon the State Attorney's successful objection
that he had had "full opportunity to cross examine." State
procedural rules precluded her from being called as a de-
fense witness and impeached (T-1017) and the State Attorney
objected successfully to having her declared a hostile
defense witness, there being no surprise to the defense
(T-1018). Later, defense counsel attempted to call a police
officer for testimony that Mrs. Buchanan had admitted to him
that she could not identify the person who fired the shots
nor see him above the waist. The State Attorney objected
successfully on the ground that a proper predicate had not
been laid for impeachment, in that Mrs. Buchanan, while
admitting to prior inconsistent statements, had not had her
attention drawn to this particular one to admit, deny, or
explain it. The earlier ruling preventing her recall as a
witness, of course, made it impossible to lay the predicate
for impeachment. The ruling to deny recall of a witness is
within the discretion of the court, but it was exercised in
a way that worked a most unfavorable result for Alvin Ford,
in light of the effect such impeachment would have had on
her testimony as the only eye-witness to the event, indeed
as the only witness to the very identity of the person who
fired the third shot. In a capital case that discretion
-13-
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should have been exercised on the side of evidence. The
fact-finding process, certainly in capital cases, must be
as full and as fair as possible.
There was no testimony other than that, yet many
questions are left unanswered. How, precisely, was Ford
Positioned? Was he standing, bending, crouching, squatting?
How precisely was he holding the gun? Was he aiming it,
swinging it, pointing it? Was he holding it in a two-handed
grip, one-handed, arm bent’or straight? Was he still,
motionless? Was he moving slowly or quickly, smoothly or
jerkily? Was he calm, agitated? Was his voice calm,
quivering, soft, loud? Was he shouting or screaming? Was
he inches away, or three,.four, five feet away? Or more?
Was the police officer more upright than prone, was he still,
was he moving, did he move any part of his body, a hand or
an arm? Did Ford turn to. run? Did he take a step, did he
whirl about, did he pause? Was the shot fired as he turned
to leave? Or before? To characterize the third shot as
that of an execution flies in the face of everything that
is known of Alvin Ford. Even if he had. qualities that might
have made possible such a motive, it must be remembered that
the third shot was fired only moments after the first two.
Alvin Ford was surely, as would anyone be under such circum-
stances, in a state of terror-stricken panic, desperate to
get out of there. Dr. Amin thinks it was fired with Alvin
-14-
"in a residual hysterical panicky state which still
viewed the fallen officer's attempt to retrieve his gun
as threatening." (See Dr. Amin's Report, Appendix B
Alvin Ford's own account changes the picture of the
shooting by providing structure for the event and specific
steps within it--which are crucial in the illumination of
the circumstances of aggravation and mitigation discussed
below. However, it was unavailable at the time of the trial.
Other steps could have been taken that would have
changed the situation. First, closing arguments by the
defense at the end of the sentencing hearing were limited
to observations on the nature of the death penalty. It was
not a point by point analysis of the application of the
aggravating and mitigating circumstances to the facts of
the case. Such a detailed summary could not have been
anything but helpful to the jury in the deliberations and
to Alvin Ford in his sentence. It might have persuaded a
majority of the jury to recommend a sentence of life
imprisonment. As it is, the jury apparently was divided
because one of them, one Dorothy Watkins, on the polling of
the jury on the question of whether the advisory sentence
was "the majority vote" said, it was the second time: "The
second time it was." (T-1359) What influence an advisory
sentence of life imprisonment would have had on the trial
judge cannot be known, but it could not have influenced him
in the direction of a death sentence, and may have influenced
him on specific findings.
a15
The second ommission was of the submission to the jury
| of the statement of the aggravation and mitigating circum-
stances. The judge, defense and prosecutor (their colloquy
is set out below) manifested considerable uncertainty as to
what to do and elected to follow defense counsel's preference,
which was not to allow the jury to have a statement but to
permit the judge to read it to them. If the jury had the
statement with them, it is problematic as to what they would
have done. But with specific requirements before them, they
would in all probability have found it more difficult to reach
a majority decision on an advisory sentence of death.
The third ommission was of a jury instruction that
aggravating and mitigating circumstances must themselves
be proved beyond a reasonable doubt. State v. Dixon, 283
So. 2nd (Fls. 1973) held that aggravating circumstances must
be proved beyond a reasonable. doubt; accordingly, there
should have been an instruction to that effect. Barbara
Buchanan's testimony, when viewed under an instuction
that it demonstrate beyond a reasonable doubt the elements
of the aggravating and mitigating circumstances, would surely
have failed to measure up, however adequate her testimony
might have been on the seperate issue of guilt in the
earlier phase of the bifurcated trial.
Had the judge and jury been provided with more
information about the offense and the character of the defendant
-16-
i that information could have been developed (a) on the basis
of Alvin Ford's own disclosure, and (b) by means of a modern
sentencing hearing. It must be much more likely that the
jury, so informed, would have advised the judge to sentence
the defendant to life imprisonment. What influenced this
would have with the judge is problematic, especially given
his finding and all of its aggravating factors. But the
primitive qualities of the hearing in those days, to say
nothing of the limited body of information available to him,
suggests that his sentence might well have been different.
~-L7-
The Mitigating Circumstances
What might have developed at sentencing is speculative,
but in all likelihood it would have worked in favor of life
imprisonment for two additional reasons.
First, Alvin Ford's disclosures which were made years
later, had they come out at the time of the trial or at
least in the sentencing phase, would have led to the develop-
ment of more extensive information in mitigation. The
mitigations would have fit the several statutory categories
and also gone beyond that into the general area of character,
including the extensive mitigating circumstances now permitted
by Lockett.
Second, the sentencing hearing itself would be a
different one now than it was then. When the hearing was
held in January 1975 there was little experience with the
bifurcated trial. Lawyers generally, including prosecutors,
defense counsel and judges, scarcely knew what they were
doing. The colloquy among court and counsel in Alvin Ford's
case at the time of the sentencing hearing reveals the extent
of the uncertainty and uneasiness.
THE COURT: Madam Reporter, continuing the case
of the State of Florida vs. Alvin
Bernard:Ford, let the record
reflect the presence of Mr. Ford,
his attorney Mr. Adams; Mr. Satz
=18-
THE COURT: for the State. The jury is without
the courtroom.
| Gentlemen, I have received a
communication from the jury. TI
will read it for the record: "Judge
: Lee, we would like the list of
i charges regarding the definitions
of aggravating circumstances and
mitigating circumstnaces. Signed,
L. Pati, Foreman."
What is your pleas(ure) gentle-
men? What is the State's attitude?
MR. SATZ: Your Honor, since this is a
relatively new proceeding, I would
like the defendent to, through his
counsel, state his feelings on it
and if I could possibly go along
with it, I will.
MR. ADAMS: Well, I have no qualms with that
Judge. I am absolutely against giving
it to them, again. However, apparently,
there is some question. They took the
trouble to write it out. If the Court
is going to give it why I request that
it be verbally and that we proceed as we
have and not send in the written
instructions.
i
! THE COURT: What is the State's view?
MR. SATZ: Your Honor, I will go along with
that, if the Court wants to read them
to the jury once again.
THE COURT: Is that proceeding acceptable to
you? I am asking what your view is.
MR. ADAMS: No, number one, I am kind of taking
a retreating position. Number one, I
would request that the Court just merely
| answer the question to the effect that
i you have heard the law as applied to
this case and ask that you recall it
as best you can.
THE COURT: Frankly, I am inclined to concede
to the defendent's request in this
proceeding.
1S:
MR. SATZ:
THE COURT:
MR. ADAMS:
THE COURT:
MR. SATZ:
THE COURT:
MR. SATZ:
THE COURT:
MR. ADAMS:
THE COURT:
MR. SATZ:
I am going to yield to the Court
on this.
I appreciate that. Thank you for your
view.
Judge, there is one other matter.
If you wish to be heard on it, I
will be happy to listen.
Once again, I will yield to the Court.
The only thing I can liken it to, sir,
is the regular jury instructions during
the course of a trial other than a
capital one or a capital one prior to
the second part of the trial, where
the jury would want some instructions
read back. The Court usually reads
the instructions requested.
Yes, I may retreat from my position.
You are right. . That, ordinarily, we
do.
If you read, Your Honor, the totality
of your charges once agian, which would
include mitigating and aggravating, I
could see no harm in that.
Mr. Adams.
I am opposed to it, as I announced,
Judge.
I appreciate that. The jury is
obviously in some quandry. They have
taken the trouble to write a request
and the Court feels it is an appropriate
one under the circumstances. The Court
retreats from its prior position.
However, I will accede to Mr. Adams and
not send the charges in but I do propose
to read the mitigating and aggravating
circumstances again.
Once again, I will reiterate my
agrument that I made prior to that
and leave it up to Mr. Adams.
22x
MR. SATZ: He doesn't want the instructions going
back and I will again yield to that.
THE COURT: All right, sir. Thank you. (T-1350-1353)
Had such a hearing been held presently and handled with
the sophistication that has come with time and experience,
the results would have been a sounder base of information.
The circumstances in Alvin Ford's favor would have been
developed fully, even those about which there was information
at the time, to say nothing of those things that came to be
known years later.
For instance, despite pharmacological information on
the effects of cocaine, Dr. Taubel in his testimony referred
to cocaine vaguely and as though it were merely an immoral
aspect of Alvin's lifestyle. The effects of cocaine and
of PCP on behavior could have been identified to illuminate
the mitigating circumstance of Subsection (6) (g)-capital
felon committed while the defendant was under the influence
of extreme mental or emotional disturbance. Psychiatric
testomy could have been oriented toward specific circumstances
of mitigation, as in Dr. Amin's report: "At the time of the
crime, Mr. Ford suffered an overwhelming anxiety reaction
which triggered a violent dissociative hysteria. He acted
out his fear and rage, protesting the destruction of himself
and his goals in life." (Dr. Amin's Report, Appendix B. )
Fm
THE DEATH PENALTY
The policy that a murderer's life may be taken in punish-
ment for his crime is carefully formulated in the death
penalty statute and administered according to hundreds of
rules of law. Hach step of the .process however bound by
rules it may be in a formal sense, involves a decision that
is a judgment combining: both justice and mercy, a judgment
that is generally intuitive in the degree to which a rule is
relaxed in the interest of mercy. Some steps, however, are
less bound by rules than others, hence more reflective of
community sentiment on the combination of justice and mercy.
There are three points at which these judgments are
relatively unconstrained by rules, hence where discretion is
broad, hence where the judgment is relatively more reflective
of the sentiment of the community. These are the decision
(or many decisions) of the prosecutor with respect to the
charges; then the jury in conviction and the jury and judge
in sentencing; and finally, the Governor and Cabinet in
clemency. The process by which a case moves from each such
step.to the next is relatively more rule-bound, hence less
reflective of community sentiment.
One of the early judgments that reflects the community's
openness to life for Alvin Ford was the apparent willingness
of the prosecutor to entertain discussions of a plea of
guilty. The colloquy on this point at the opening of the
trial went as follows:
THE COURT: Mr. Adams.
MR. ADAMS: Judge, I think the record should reflect,
initially, that there have been confer-
ences with Mr. Satz and other personnel
of the State Attorney's office with
regard to the possibility of a plea. I
want the record to show that I did not
leave that stone unturned.
THE COURT: I see. All right, sir. Surely I appre-
ciate it.
MR. ADAMS: Nothing was able to be gained. from it.
THE COURT: Nothing was able to be resolved but you
acknowledge in fact you were contacted
by the State Attorney with the possibility,
with a view of negotiating a plea.
MR. ADAMS. Not only to negotiating a plea but we have
had many conferences with reference to the
case itself and discussions about the case
and the evidence.
MR. SATZ: Let the record further reflect that this
conference is outside the presence of the
jury, and no juror or prospective jurors
are present. (T-8-9.)
This is very important because a plea of guilty to first
degree murder, let alone to a lesser charge, is not exchanged
for a death sentence. The judgment of the prosecutor must
have been that this was a case that did not necessarily call
for the death sentence.
The next judgment-point indicating the community's sense
of the appropriateness of the death sentence is the advisory
sentence of the jury. Apparently, the jury divided in its
initial vote, as observed earlier in the discussion of the
sentencing process. It is very important to note that this
cross-section of Ft. Lauderdale itself, a jury whose selection
wlan
was not free of faults, a jury whose members were exposed for
months to prejudicial publicity, a jury which was not pro-
tected by sequestration from the mood of the community during
the tribal itself, nevertheless divided in its first vote on
life or death.
The remaining judgment-point in this case is the clemency
decision, in which the executive views a case from a higher
vantage point than the community in which the offense
occured, hence with a view of the sentence in a particular
case as it relates to other cases in’ the whole picture. The
executive can see this much better than any trial judge, who
sees a capital case once in a while; much better even than
the Supreme Court of Florida, which sees such cases one by
one in a sequence determined by a combination of chronology
and the accidents of appellate litigation -- and always with
a focus on rules not results, on what is legal not what is
right. Thus, the executive has a much better sense of which
capital cases truly stand out as. warranting a death sentence,
if there are to be death sentences at all, and which cases
do not, whatever judgment might have been made at the level
of the local community. This is why the grace that is
clemency is vested in the state-level executive, not its
counterparts at county or municipal levels, nor in the
legislative or judicial branches.
What should the judgment be in the case of Alvin Ford?
ee
It has been suggested that this case was swept into the
death sentence by the mechanical application of the statu-
tory schedule of aggravating and mitigating factors, a more
careful, discriminating analysis of which wowldibave led to
a quite different sentence. It has been suggested further
that the sentencing process in this case, in the early
days of sentencing under Florida's then-new system, was
done much less soundly than it would’ be done today. It
has been suggested that there is much more information that
could have been developed to be presented through a modern-
style hearing for careful application. of the sentencing
factors. All of this suggests that the death sentence is
inappropriate in the case of Alvin Ford.
Some help on.this judgment is available from two of the
nation's leading retentionists on capital punishment,
Walter Berns and Frank Carrington, both. of whom staunchly
advocate the death penalty. The latter, in his book,
Neither Cruel Nor Unusual, has identified an inventory of
cases for which, in his opinion, the death penalty is
appropriate. He has done so with reference to the categories
of aggravating circumstances, much like those in Florida's
sentencing system under which Alvin Ford was sentenced. But
One searches Carrington's catalog (See Carrington, Chapter
2, Appendix E.) in vain for a case that comes close to
Alvin Ford's. The conclusion is inescapable that Carrington
~4-
would reserve the death penalty for especially heinous
offenses, not Ford's.
Walter Berns in his book For Capital Punishment writes
as follows:
To reinforce the moral- sentiments of a people,
the criminal law must be made awful or awesome,
and . . .the only way within our means to do
that today is to impose the death sentence;
but an execution cannot be awesome if it is
associated with petty affairs or becomes a
customary, familiar event. Thus, while..the
death penalty should not be seen as cruel, by
the same token it should be seen as unusual,
not in the techniques employed when carrying
it out, but in the frequency with which it is
carried out. It is this principle that should
be embodied in statutes and impressed upon
judge and jury; a properly drawn statute will
allow the death penalty only for the most aw-
ful crimes: treason, some murders, and some
particularly vile rapes. It is not beyond the
skill of legislatures to draft such a statute --
for example, it could provide that the death
sentence be imposed only for "outrageously or
wantonly vile" offenses -- one that defers to
the jury's judgment in particular cases but,
at the same time, impresses upon the jury the
awesome character of the judgment it is asked
to make. This is not incompatible with retri-
butive sentencing; on the contrary, retribu-
tion, unlike. deterrence, precisely because it
derives from moral. sensibilities, recognizes
the justice of mercy, the injustice of punish-
ing the irresponsible,. and limits to the
severity of punishment. . . .It is also compa-
tible with the purpose of capital punishment;
only a relatively few executions are: required
to enhance the dignity of the criminal law,
and that number is considerably smaller than
the number of murders and rapists. (P. 183.)
In his letter (See Appendix D. Berns has applied his principle
of sparingly administering the death penalty: ". . . if you
are right when you say that the crime he (Alvin Ford) committed
-5-
was less heinous than that of John Spenkelink, . . .then I
have no hesitation in saying that he does not deserve the
death penalty. . . .-had I been on-the Spenkelink jury, I
would not have voted for the death penalty; but I would not
hesitate so to vote in some other cases, which I discuss in
the book." And those cases, like those in Carrington's
book, are far from resembling that of Alvin Ford.
That distinction, between the cases for which the death
sentence is appropriate and a case like Alvin. Ford's, that
is swept into its scope by rules automatically applied
without discrimination, is a distinction the executive can
appreciate better than local communities, because the execu-
tive has a broader perspective on the death penalty and can
see the forest, not a tree or two. Moreover, the executive
in clemency can act upon that distinction and bring the
sentence, where it is inappropriate, into harmony with what
sentences should be.
A final point must be made in general about the death
penalty, that looks forward to a factor that will one day
rise above the neglect it has received in the law generally
and in capital punishment. That factor is time, the passage
of time. Not only is the time on death row spent cruelly
and unusually -- only 160 some inmates experience it out of
many thousands in prison, but no man spends seven years on
death row and remains the same man -- or boy -- he was at
Ginn
sentencing. Alvin Ford has kept himself remarkably intact
in his seven years under sentence of death. He has moved, as
all men move as they mature, from one stage of life to
another; has been moving through the "passages" or "transi-
tions" or "seasons of a man's life" about which we are
beginning. to learn and understand -- for the first time (See
Sheehy, Passages; Gould, Transitions; and Levinson et al.
Seasons of a Man's Life). Insofar as Alvin Ford is not the
same young man he was at sentencing, having then. just reached
his majority, his execution violates the first principle of
retribution, that the penalty be paid by the man who committed
the crime. After seven years, especially seven years on death
row, that man no longer exists except in the most superficial
ways; to execute Alvin Ford today mocks whatever justice
there may have been in that sentence of seven years ago.
Beyond the injustice of punishing someone who is no
longer the same person, except in outward ways, the ultimate
tragedy of the passage of time is the emergence of a better
person. The bitter irony of capital punishment today is the
emergence of mitigating factors after sentence, factors that
enrich the lifelof.rAlvin Ford today and those he has related
to in and out of prison in that time. These factors elude
the sweep of the statutory schedule of mitigating circumstances
and present themselves only to you, the Governor and Cabinet,
in clemency. Further, rehabilitation -- so obviously precluded
-7-
in principle by the death sentence -- ironically begins in
practice for many of the inmates under. sentence of death and
progresses for as long as they live. It has been so for
Alvin Ford, whose potential for rehabilitation was seen but
underestimated by Dr. Taubel.. The proof of that potential
is in the Alvin Ford of today at age 28. His commitment to
the old values has reappeared, as it is manifested in his
letters from prison; his care for others appears time and
again in word -- in letters and conversations, in whatever
limited things a prisoner can do, and also in deeds of
courageous effort to improve the lot of the prisoners and
their loved ones who visit them. Truly, the old Alvin Ford
has come home.
PRAYER FOR CLEMENCY
Clemency exists to correct for the workings of a
legal system that yields from time to time a result that
is not right. There are, regrettably , miscarriages of justice.
Justice miscarries sometimes at the very outset, at the instant
of conviction or sentence. Justice sometimes miscarries with
the passage of time, as information and insight alters the
understanding of the offense, or the offender, or both.
These occasions for mercy are present in the case of
Alvin Ford. Rules of law, especially the requirements of
Florida's brand new capital sentencing system, were applied
mechanically; inadequately developed and insensitively
interpreted without the findings of sufficiencies and
weighings of evidence called for by the statute itself. Even
the Supreme Court of Florida ignored the requirements of the
developing law of capital sentencing. So, Alvin Ford was swept
to death row in 1975, by a sentence so highly inappropriate to
its real circumstances, especially as illuminated by his own
account tragically disclosed so many years later.
In addition, so much more of Alvin Ford himself
is known now, of his boyhood before he went out into the world,
and of the life that took so quickly a tragic turn. So much
more is known of his development since then--with maturity and
remorse--that outweighs by so much the circumstances of the
offense when they are rightly understood.
The Alvin Ford of 1981 is still a young man of promise,
a young man whose life in prison belies the expectations at the
time of trial. No longer a boy of 20,. Alvin Ford has become his
former self, committed to traditional American values and our
way of life, to which he dedicated himself when he launched the
career that held such promise. Today he urges young and
troubled people to have faith and confidence in that system,
to learn and work to make their lives, the lives of their
loved ones, and all our lives much better. Alvin Ford deserves
our faith and confidence now, for he has earned it.
And so, on his behalf I present this prayer for the
clemency it is the grace of the Governor and Cabinet to grant,
this plea for the commutation of Alvin Ford's sentence from
death to life.
In Copyright