When we last left the saga of Clemente Javier Aguirre-Jarquin, an undocumented immigrant from Honduras, he had just received some good news from the Florida Supreme Court.
In October 2016, ten years after he was sentenced to death for two murders he almost certainly didn’t commit, the justices unanimously vacated his conviction and ordered a new trial. Newly-tested DNA evidence from the crime scene didn’t incriminate him, the court concluded. Instead it appeared to implicate the daughter and granddaughter of the victims, a mentally unstable woman named Samantha Williams, who reportedly told five different people on five different occasions after the 2004 murders that she, and not her neighbor Aguirre-Jarquin, had committed the crimes.
Given the supreme court’s conclusions, and the reasonable doubt they create about the defendant’s potential guilt, sensible prosecutors might have moved on from Aguirre-Jarquin and dismissed the case against him. Who wants to spend taxpayer time and money relitigating a capital case in which defense attorneys can point to scientific evidence and a “confession” that link another suspect to the crime? At a minimum, given the collapse of the prosecution’s evidence, a plea deal might also have made sense. The man has already spent nearly 14 years in prison, after all.
Instead prosecutors have the spend the past two years in a relentless effort to put Aguirre-Jarquin in the Sunshine State’s death chamber. No surprise, I suppose. Florida is an active death penalty state where prosecutors figure they can use a pro-prosecution “death-qualified” jury—in which jury members may only sit in judgment if they swear they are open to capital punishment as a possible sentence—to try to gain a conviction where there is weak evidence of guilt, and the defendant is an undocumented immigrant and thus more likely to be the victim of juror bias.
And so the Seminole County state attorney (about 22 miles northeast of Orlando) evidently is plunging ahead with a new capital trial even though the circuit court judge who was presiding over the case, Jessica J. Recksiedler, recused herself last Thursday under pressure from defense attorneys. The judge’s ethical and professional travails here, both before and after the state supreme court’s 2016 ruling, epitomize the foundational problems prosecutors will face as they proceed against Aguirre-Jarquin. How can they obtain a conviction in such a weak case without relying on arbitrary and capricious jurors? And won’t a more competent judge than Recksiedler see through their nonsense?
It was Judge Recksiedler who initially had rejected the very post-trial arguments the state Supreme Court later embraced. Over and over again the justices overruled the factual conclusions the judge had reached about the evidence, or lack of it, against Aguirre. Over and over again they overruled the way she had applied legal standards. Though her 68-page ruling in the case subsequently was overturned, she was so proud of it that after she published it (but before it was rejected by the justices) that she cited it to her colleagues as proof of her bona fides when she applied for a promotion on the bench in 2014.
Not only did this appear to violate one of the state’s canon of judicial ethics, which bars judges from committing themselves to a particular position while a candidate for judicial office, it also demonstrated that the judge had little clue about the difference between an opinion to be proud of and one to be ashamed of. She should have recused herself from the case in 2016, at the when the justices roundly rejected her findings of fact and conclusions of law. And yet she felt compelled to stay on the case. The defense alleges she did so because she is convinced of Aguirre-Jarquin’s guilt and thus biased against him. We’ll never know.
In Florida, judges are required to keep themselves certified to handle capital cases. Consider it a form of continuing legal education. But last year, as the Aguirre-Jarquin retrial was gearing up, the parties learned that Recksiedler had allowed her capital certification to lapse and had been forced to ask for a waiver of the deadline and an extension of time to complete her certification. She should have disclosed this to the lawyers immediately but evidently she did not. They found out instead from another judge in another case. That’s not okay. (The failure to disclose evidently is a problem for this judge. She was reprimanded in 2015 for failing to tell a judicial panel that she had been pulled over for speeding.)
Then, late last month, came a preview of what we can expect from the jury selection to come. During the first attempt at jury selection of the retrial, held in February, the judge made a series of odd comments about the defendant and the death penalty and displayed, through contentious questioning with potential jurors, a lack of understanding of what it will take to seat a death-qualified panel in what amounts to a high-profile case involving a defendant susceptible to racial bigotry and prejudice.
For example, on the first day of jury selection, the judge evidently failed to tell jurors that they could not research the facts of the case, or expose themselves to media reports about the case, or discuss any aspect of the case with each other or anyone else. Anyone who has ever watched a television show about jury trials, never mind actually served as a juror, knows that such warnings are a basic part of any judge’s repertoire and are essential to establishing ground rules that all juries must follow in any case. It’s shocking that a judge in a capital case, one that had generated significant coverage for years, would fail to issue that instruction off the bat.
There was more. In court papers filed earlier this month the defense asserted that the judge incorrectly referred in the presence of potential jurors to a guilty plea Aguirre-Jarquin had made—there was no such plea—and then seemed to try to recruit potential jurors to see the case as though they were soldiers in some sort of war on crime. She even appeared to misunderstand the new nature of the jury’s role in capital cases in Florida. Since jury verdicts in death penalty cases now must be unanimous, jurors don’t just suggest or “recommend” punishment—in almost all circumstances they decide it.
Not surprisingly, then, problems soon emerged among the jury candidates. During voir dire some began to disclose to the judge and the lawyers that other potential jurors were “going online” to look up facts about the Aguirre-Jarquin case. There also evidently was talk among potential jurors about the nationality and immigration status of the defendant, which should have been off-limits (and which suggest a level of bias that surely will permeate this case whenever it is tried). Even before it was empaneled and asked to consider any evidence, in other words, this was a runaway jury showing signs of undue prejudice toward the defendant.
On the seventh day of jury selection, as the scope of the problem became clearer, Judge Recksiedler gave prosecutors and defense attorneys time to discuss potential solutions. According to Aguirre-Jarquin’s lawyers, both the defense team and prosecutors subsequently agreed to try a joint “cure”: an instruction from the judge designed to reel in the 51 potential jurors who already had been screened to that point. But before the attorneys even could pitch their solution to the judge she dismissed the entire jury panel and set a new trial date for March 26th.
Both prosecutors and defense attorneys were blindsided by the quick call. And it generated a new recusal motion from the defense (the first one, filed last year over the judge’s certification and promotional problems, was denied). Recksiedler had to go, Aguirre-Jarquin’s lawyers argued, because she had consistently shown she was unwilling or unable to preside over the case in a way that would generate confidence in the accuracy and reliability of the result. She was, they claimed, biased against the defendant and simply not the right person for the job. To her credit, this time, the judge agreed. Now she’s gone and a new trial date has not yet been scheduled.
All of which means that prosecutors have yet another opportunity to do the right thing and drop the case. Any trial judge who is faithful to the Constitution, any trial judge willing to protect Aguirre-Jarquin’s fair trial rights, any trial judge capable of honestly assessing the evidence here, will see how hollow the state’s case has become and how likely it will be permeated by undue prejudice. If it proceeds to trial it will end either in an acquittal or in another conviction that will not withstand appeal. And what a waste that would be.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.