Filing # 77540213 E-Filed 09/06/2018 03:43:56 PM

IN THE CIRCUIT COURT OF THE NINTH

JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA

CASE NUMBERS: 2016 CF 15738 A

2017 CF 826
STATE OF FLORIDA,
Plaintiff,
vs.

MARKEITH LOYD,
Defendant.
/

MOTION TO PRECLUDE CONSIDERATION OF THE DEATH PENALTY

ON THE BASIS THAT FLORIDA’S CAPITAL SENTENCING PROCEDURE
IS IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS
TO THE U.S. CONSTITUTION

COMES NOW the Defendant, MARKEITH LOYD, and hereby moves for a ruling that he

may not be sentenced to death because the Florida capital sentencing procedure, as it has been

applied in the Fifth Judicial Circuit, Ninth Judicial Circuit, and statewide, is in violation of the

Eighth and Fourteenth Amendments to the U.S. Constitution and Article I Section 2 and Section

16 of the Florida Constitution. The Defendant’s case is in the Ninth Judicial Circuit and the

Office of the State Attorney for the Fifth Judicial Circuit has been appointed to prosecute the

Defendant’s case. Defendant therefore moves this Court to enter an order precluding imposition

of the death penalty because life imprisonment is the only sentence that can constitutionally be

imposed. As grounds in support the Defendant states the following:

FACTUAL BACKGROUND

THERE IS STRONG STATISTICAL EVIDENCE OF A HISTORY OF RACE-OF-

DEFENDANT BIAS IN HOMICIDE CASES THROUGHOUT THE COUNTIES OF THE
FIFTH JUDICIAL CIRCUIT, NINTH JUDICIAL CIRCUIT, AND STATEWIDE.

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 Undersigned counsel collected publicly available information through the Florida

Department of Corrections website on death row inmates from the Fifth and Ninth Judicial

Circuit. There were 23 death row inmates from the Fifth Judicial Circuit. Two of those counties,

Sumter and Citrus, did not have death sentence on any black defendants. It should be noted that

the population of blacks in those two counties were 7.5 percent and 3.3 percent respectively.

However, in the three counties that had death sentences on black defendants, black defendants

were overrepresented when compared to each counties population. Although in Marion County

13.4 percent of the population is comprised blacks, 42.8 percent (or 3 out of 7) of the death row

population from Marian County is black. In Lake County 11.1 percent of the population is

black, while 36.3 percent (or 4 of 11) of the death row population is black. For the entire Fifth

Judicial Circuit 34.7 percent of death row inmates were black, which is over three times the

actual black demographic in this circuit.

The statistics in the Ninth Judicial Circuit are similar. In Orange County 8 of the 19

death row inmates are black. This is slight less than twice as much of the actual black

demographic of Orange County which is 22.8 percent. Osceola County does not have any black

death row inmates however the black population in Osceola County is only 8.8 percent.

Combined, black death row inmates represent 34.7 percent of death row inmates, which is over

twice the actual black demographic in the Ninth Judicial Circuit.

According to the 2010 census, the percentage of blacks within the State of Florida was

16.9 percent. Of the 346 inmates on death row, 132 of them were black. Black death row

inmates represent 38 percent of the death row population. These statistics indicate a system

infected with race-of-defendant bias.

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THERE IS HISTORICAL EVIDENCE THAT FLORIDA, THE FIFTH JUDICIAL
CIRCUIT, AND NINTH JUDICIAL CIRCUIT HAS A SIGNIFICANT HISTORY OF
RACIAL BIAS AGAINST AFRICAN-AMERICANS

Florida has a long history of racial segregation and racial tension. Social psychologist

Marvin Dunn details in his book the long and contentious struggle that African-Americans have

dealt with in their quest in obtaining equality. The effects of school racism, legal lynchings, and

gentrification still linger on till this day. Though most Floridians have embraced a multi-cultural

attitude the State still has a significant extremist population that has been a topic of research for

the Anti-Defamation League. Over the course of the last few years, from the events of the

George Zimmerman trial to just as recently as gubernatorial candidate Ron DeSantis warning

voters not to “monkey it up”, race relations in Florida have become an important issue for re-

evaluation, at the subconscious level. Race-relations at the conscious level are also clearly an

issue in our State, especially in the criminal justice system. Only a few days after Mr. Desantis’

initial comments, a white supremacy group released a robo-call targeting white voters in Florida

with the speaker (a fake Mr. Gillum) stating that he would pass a law letting African-American’s

evade arrest “if the Negro know fo' sho' he didn't do nothin'.”

Furthermore, when looking specifically at the Fifth Judicial Circuit there is a significant

history of racial discrimination in the realm of false and harsher prosecutions against African-

Americans. Most notably, the Groveland Four case has become a historical symbol for the legal

lynchings that indeed took place in the area. This story involved four young black males who

were accused of raping a white woman by the name of Norma Padgett. Over the years, two of

these men were sentenced to death, one was sentenced to life, and one was murdered by the Lake

County Sheriff. A Pulitzer Prize winning book explored the Groveland case, outlining the

corruption of the Sheriff’s department and casting serious doubt on the actual guilt of these four

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young black men. In April of 2017, the legislature passed a resolution formally apologizing for

this prosecution and calling on Governor Rick Scott to fully exonerate them. Despite the

overwhelming evidence of their innocence and the legislature’s resolution, Governor Scott has

yet to fully exonerate them.

The Ninth Judicial Circuit also has a long history of racial discrimination. In the weeks

preceding the 1920 presidential election blacks were registering to vote at record numbers in

Ocoee, led by the efforts of Mose Norman and July Perry. On election day, Mose Norman and

other blacks were denied the opportunity to vote at the polls. Mr. Norman returned to the polls

later on that day with a shotgun in an attempt to exercise his constitutional right. Mr. Norman

was chased off by a mob of whites and sought refuge in Mr. Perry’s home. About 100 white

men arrived at Mr. Perry’s home demanding surrender. Ultimately Mr. Norman escaped, but

Mr. Perry was arrested and subsequently lynched on a telephone post. Attached to Mr. Perry’s

body was a note with an ominous warning “This is what we do to n****** that vote.” The mob

went on to raze Ocoee, over 50 people were killed and 500 blacks fled the town leaving it

virtually white.

In 2016, Aramis Ayala defeated incumbent Jeff Ashton in the Democratic primaries.

Precinct data showed blacks and Hispanics gave over 60% of the vote to Ayala while Ashton

solidly won white Democrats. Ms. Ayala ultimately won the general election and became the

first black female State Attorney in Florida. Citing numerous factors, including the

discriminatory application of the death penalty, Ms. Ayala exercised her discretion and

announced that her office would not seek the death penalty in Mr. Loyd’s case and others. This

announcement was met with both praise and criticism. Governor Scott removed Ms. Ayala from

overseeing capital cases and appointed Mr. Brad King. By doing so Governor Scott

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disenfranchised the voters of Orange and Osceola county (disproportionately impacting racial

minority voters) and maintained an aspect of the criminal justice system that was determined by

the elected official in this Circuit to systematically discriminate against minority defendants.

MEMORANDUM OF LAW

I. STATISTICAL AND HISTORICAL EVIDENCE OF RACE OF DEFENDANT

BIAS IS PROOF OF AN UNCONSTITUTIONAL SENTENCING
PROCEDURE.

In McCleskey v. Kemp, 481 U.S. 279 (1987), the Court recognized a capital defendant’s

standing to raise a claim of race-of-victim discrimination. Though rejecting the claim for

insufficient proof, Justice Powell’s opinion stated that the Court acknowledged that race-of-

victim discrimination, if proven, would create an unconstitutional classification—one that is “an

irrational exercise of governmental power” Id. at 291 n.8. Although Justice Scalia joined the

opinion without dissent, resulting in the 5-4 affirmation, he apparently did not agree with the

reasoning of the Court. In a McCleskey case memorandum written to Justice Marshall, Justice

Scalia stated that “it is my view… that the unconscious operation of irrational sympathies and

antipathies, including racial, upon jury decisions and (hence) prosecutorial [decisions], is real,

acknowledged by the [decisions] of this court and ineradicable, I cannot honestly say that all I

need is more proof.” Justice Scalia, it appears, acknowledged the existence of racial

discrimination in the death penalty process, but found it of no legal consequence. If this is the

case, the petitioner’s argument in McCleskey was ultimately rejected not for a lack of evidence of

racial bias, but rather an acceptance of it. This may explain why several years later the author of

the McCleskey opinion, Justice Powell, lamented that it was the one vote he wished he could take

back. The McCleskey opinion is wrong and outdated and should not only be reevaluated on race-

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of victim discrimination, but also to race-of defendant discrimination. Defendant has provided

the Court with conclusive statistical and historical evidence of disparate treatment in the Fifth

Judicial Circuit, Ninth Judicial Circuit, and statewide, which at the very least should place the

burden on the State to prove non-discriminatory intent.

II. DIRECT EVIDENCE OF DISCRIMINATORY INTENT IS UNREASONABLE

BECAUSE RACIAL BIAS IS USUALLY EITHER CONCEALED OR
UNCONSCIOUS.

Because the Supreme Court did not state precisely the limits of its holding, the lower courts

have erred in reading McCleskey too broadly. Under established equal protection principles,

direct evidence of discriminatory intent is not required to prove a violation of the Eighth or

Fourteenth Amendment. In Washington v. Davis, 426 U.S. 229, 242 (1976) the Court stated,

“invidious discriminatory purpose may often be inferred from the totality of the relevant facts”

and that appropriate analysis “demands a sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” The court goes on to explain that this sensitive inquiry is

required because the perpetrators of racial discrimination rarely announce their personal bias if,

in fact, they are even aware of it. Id. The concept of unconscious or implicit bias was ignored in

McCleskey, which may partially explain the reasoning behind a proof of discriminatory intent

requirement. The suggestion that racial discrimination is only relevant when conscious intent can

be proven ignores not only equal protection case precedence, but widely accepted social science

as well. As UCLA law professor Jerry Kang explains in Implicit Bias in the Courtroom, 59

UCLA L. Rev. 1124 (2012) , “The conventional wisdom is that the social cognitions that

individuals hold are relatively stable, in the sense that they operate in the same way over time

and across different situations. However, recent findings in the mind sciences, especially implicit

social cognition (ISC), have undermined these conventional beliefs… [A]ttitudes and stereotypes

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may also be implicit, in the sense that they are not consciously accessible through introspection.

Accordingly, their impact on a person’s decision making and behaviors does not depend on that

person’s awareness of possessing these attitudes or stereotypes. Consequently, they can function

automatically, including in ways that the person would not endorse as appropriate if he or she did

have conscious awareness.” Put simply, implicit bias cannot be proven with the same type of

direct evidence we typically find in the legal world, yet a wealth of statistical evidence indicates

that it exists at a pervasive level. This is particularly troubling in respect to the deference given to

prosecutors in deciding when to seek the death penalty, a decision which, unlike that of the jury’s

final imposition, does not require proof of any aggravating factors. Such discretion is ripe for

unconscious or even unexposed conscious discrimination in the decision making process,

without fear of reversal.

III. THE SUPREME COURT’S JURISPRUDENCE HAS RECOGNIZED ON

SEVERAL OCCASSIONS THAT STATISTICAL EVIDENCE OF
DISCRIMINATION IS ENOUGH TO DEMONSTRATE AN EQUAL
PROTECTION VIOLATION

A. JURY SELECTION

As a result of Batson v. Kentucky, 476 U.S. 79 (1986), plaintiffs have been allowed to use

statistical evidence to prove discrimination in jury selection cases because direct proof is

extremely hard to find. The Supreme Court allows a defendant to prove racial discrimination by

the prosecutor in the grand jury selection process by showing a statistical disparity between the

number of minorities in the population and the number of minorities actually summoned.

Castaneda v. Partida, 430 U.S. 482, 493 (1977). In the selection of a single jury, the Supreme

Court allows a defendant to prove racial discrimination in the jury selection process by simply

showing the prosecutor used all peremptory challenges to exclude members of the defendant’s

race. Batson, 476 at 93. In both situations, the Court relied on the presumptions that if the

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statistics showed a large disparity then there is a presumption of discrimination based on race;

this, coupled with the difficulty of proving discrimination by direct evidence, persuaded the

Court to allow defendants to rely on statistical data to prove discrimination. In coming to the

conclusion that a defendant may establish a prima facie case by relying solely on the

prosecutor’s exercise of peremptory challenges, the Batson Court put the burden on the

defendant to show discrimination. Id. The Court said that “[i]n deciding if the defendant has

carried his burden of persuasion, a court must undertake ‘sensitive inquiry into such

circumstantial and direct evidence of intent as may be available.” Id. (quoting Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). “Circumstantial evidence of invidious

intent may include proof of disproportionate impact [shown by statistical data].” Id. at 95.

Additionally, the Court stated that “under some circumstances proof of discriminatory impact

may for all practical purposes demonstrate unconstitutionality because in various circumstances

the discrimination is very difficult to explain on nonracial grounds.” Id. Furthermore, in

explaining its reasoning for allowing an inference of discrimination, the Court said that “[p]roof

of systematic exclusion from the venire raises an inference of purposeful discrimination because

the result bespeaks discrimination.” Id. at 94. Also, the Court has stated that besides exclusion,

evidence of underrepresentation in the venire-selection practice “providing the opportunity for

discrimination,” may support an inference of discrimination “because the Court has declined to

attribute to chance the absence of black citizens on a particular jury array where the selection

mechanism is subject to abuse.” Id. at 94. Statistical proof, then, is recognized as a necessary

way to prove discrimination because the disparity is difficult to show on non-racial grounds, and

the Court will not attribute to chance the absence of minorities on the jury.

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 B. EMPLOYMENT DISCRIMINATION

Jury venire cases are not the only exceptions where a claimant may point to

discriminatory effects to prove purposeful discrimination. The Court has acknowledged in

certain cases the discriminatory effects are so overwhelming that it cannot be explained on any

other grounds except purposeful discrimination. In Yick Wo v. Hopkins, 6 S. Ct. 1064 (1886), the

City of San Francisco passed an ordinance requiring laundries to have a permit while operating

within the city. However, the ordinance was administered in such a way that over 200 Chinese

applicants were rejected and only one white applicant out of 80 who applied was rejected. Id.

The petitioner, a Chinese man, violated the ordinance and operated the laundry without a permit,

and he was arrested by the county. Id. The Court held, “[T]he conclusion cannot be resisted that

no reason for it exists except hostility to the race and nationality to which the petitioners

belong… The imprisonment of the petitioners is therefore illegal and they must be discharged.”

Id. at 1073.

Use of statistical data to prove intentional discrimination in the employment area is

generally accepted by the courts because direct evidence of discriminatory motive is almost

never available. As the Court observed in International Brotherhood of Teamsters v. United

States, “[S]tatistical analyses have served and will continue to serve an important role in cases in

which the existence of discrimination is a disputed issue… [because] in many cases the only

avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by

the employer or union involved.” 431 U.S. 324, 340 (1977). In Washington v. Davis, the Court

stated that an underlying purpose for allowing the use of statistics in showing discriminatory

impact in jury cases is that “in various circumstances the discrimination is very difficult to

explain on nonracial grounds.” 426 U.S. 229, 242 (1976). Statistics are a reliable way to prove

disparate impact in hiring. Further, the lower courts agree with the Supreme Court on this policy
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and state that disallowing the use of statistical analysis “would have the practical effect of

insulating [employers] from charges of discrimination… since such claims may well be virtually

unprovable by any other means [other than statistics].” Sobel v. Yeshiva Univ., 839 F.2d 18, 35

(2d Cir. 1988). By forcing the plaintiffs to prove intentional discrimination only through the use

of direct evidence, the court would be setting the bar unacceptably high. In Teamsters, the Court,

while looking at a racial imbalance in the number of African Americans in the work force

nationally compared to the number of African Americans employed with the Teamsters, allowed

the use of statistics because statistics showing racial or ethnic imbalance are probative:

[B]ecause such imbalance is often a telltale sign of purposeful discrimination; absent

explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time

result in a work force more or less representative of the racial and ethnic composition of the

population in the community from which employees are hired. Evidence of long lasting and

gross disparity between the composition of a work force and that of the general population thus

may be significant even though § 703(j) [of Title VII of the Civil Rights Act] makes clear that

Title VII imposes no requirement that a work force mirror the general population. Teamsters,

431 U.S. at 340 n.20.

The court then allows the plaintiff to use statistics to show a prima facie case of

discrimination by demonstrating a large racial imbalance. After this prima facie showing is

complete, the defendant then has an opportunity to rebut this evidence and show that the

statistics do not show purposeful discrimination. Although the plaintiff in Teamsters bolstered its

use of statistical evidence with direct testimony from employees or applicants who were

discriminated against, the Court still allowed statistics to show purposeful discrimination. Id. at

338. The defendant in Teamsters was given the opportunity to rebut the prima facie case of

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discrimination. Id. In Title VII cases, the Court considers the use of statistics in light of the

surrounding circumstances. The decision-maker still, however, hears the evidence through

statistics.

C. HOUSING DISCRIMINATION

In housing discrimination, courts likewise allow the plaintiff to use statistical data to

make a prima facie case of discrimination when large disparities exist between the percentage of

minorities in the community and the percentage of minorities in a housing development.

Additionally, direct evidence is hard to find and prove. When a defendant maintains a housing

development where “the percentage of minorities in the defendant's housing is substantially

lower than the percentage of qualified minorities in the local market, then a ‘telltale sign of

purposeful discrimination’ may be established.” Id. at 340. Further, in Metro Housing

Development Corporation v. Village of Arlington Heights, the Seventh Circuit Court stated,

“evidence of intent has become harder to find. But this does not mean that racial

discrimination has disappeared.” 558 F.2d 1283, 1290 (7th Cir. 1977). Additionally, the court

said “[a] strict focus on intent allows discrimination to go unpunished in the absence of overt

bigotry.” Id. Practically, because “clever men may easily conceal their motivations. . . [and] this

is especially persuasive in disparate impact cases where a facially neutral rule is being

challenged. Often, such rules bear no relation to discrimination upon passage, but develop into

powerful discriminatory mechanisms when applied.” Id. Again, like Title VII cases and age

discrimination cases, direct proof of purposeful discrimination is almost impossible for a plaintiff

to find and prove but statistics are allowed to show disparities that create an inference of

improper motives. These statistics help uncover covert discrimination hidden by clever

wrongdoers.

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 D. DESEGREGATION IN PUBLIC EDUCATION

State efforts to promote a degree of racial neutrality in death sentencing that satisfies the

requirements set forth in Furman v. Georgia, 408 U.S. 238 (1972), mirror similar efforts by local

school boards to satisfy the desegregation of schools demanded by Brown v. Board of Education.

347, U.S. 483 (1954). Education is perhaps the most important function of state and local

governments. The Court has recognized that denying a child the opportunity for education may

also deny him success in life. The courts have therefore imposed a duty under the fourteenth

amendment upon school systems to desegregate and ensure equal educational opportunities for

minority children. For a litigant to establish a prima facie violation of the equal protection clause

in the school segregation context, he must prove both historically and statistically that a

segregated system presently exists and that such a system is a result of intentionally

discriminatory state action. See Columbus Bd. of Education v. Penick, 443 U.S. 449, 464 (1979).

Because of the difficulty of proving discriminatory intent, the Court has found it necessary to

infer the existence of this element. See Brown, 347 at 483. Where a school board has a history of

discriminatory practices and continues to act in a discriminatory manner, the Court will infer that

any present discrimination is the result of a discriminatory intent on the part of the school board.

Keyes v. School Dist. Number 1, 413 U.S. 189, 200 (1973). The litigant historically establishes

past discrimination and statistically proves a present discriminatory school system. See Dayton

Bd. of Educ. V. Brinkman, 443 U.S. 526, 530 n.1 (1979). Once a litigant has established a prima

facie case of school discrimination, the burden shifts to the school board to rebut the inference of

discriminatory intent or causation. Specifically, the defendant school board must prove that it did

not formulate its policies and practices in order to ‘create or maintain segregation, or that such

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policies and practices ‘were not factors in causing the existing condition of segregation in the

schools. Keyes, 413 U.S. at 213-14. The plaintiffs will prevail unless the school board offers

sufficient countervailing evidence. Id. The courts have recognized that racial discrimination is a

consistent theme in the history of the United States and that it continues to exist in society today.

Analysis of the jury selection, Title VII, housing, and school desegregation cases demonstrates

that the courts are striving to move society toward the ideal of a discrimination-free society. This

requires the removal of barriers to minorities in employment, housing, and education. The courts

must also root out discrimination from jury selection and other judicial processes because such

discrimination fosters and legitimizes society's prejudices. To reach these goals, the courts have

been willing to employ the admittedly imperfect tool of statistics as proof of discrimination The

judicial use of statistics and the burden-shifting mechanism ensure that problems of proof do not

thwart the courts' goal of eliminating discrimination in all sectors of society.

Throughout the state of Florida and around the country, when statistics indicate that

discrimination still exists, treasured local control is usurped by the state courts, and directives

implemented until they are satisfied that the discrimination no longer exists. Discriminatory

intent is irrelevant if the statistical results suggest that the problem still exists.

Recently, the Southern Poverty Law Center filed several complaints regarding the

systemic discriminatory disciplinary actions in five different school districts in the northern

region of the State of Florida. Additionally, the ACLU filed a similar complaint against Brevard

County. Black students in these counties were punished more often and more severely in

comparison to their white classmates. These complaints have led to multiple investigations by

the U.S. Department of Education’s Office for Civil Rights. It is unconscionable that a degree of

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statistical evidence that will lead educational reform is not enough to demand reform of a system

that imposes the ultimate penalty on a defendant.

CONCLUSION

THE DEATH PENALTY SHOULD BE PRECLUDED BASED ON A NUMBER OF

VARIABLES OR IN THE ALTERNATIVE THE BURDEN SHOULD BE SHIFTED TO
THE STATE TO PROVE A NON-DISCRIMINATORY INTENT

In the areas of jury selection, peremptory challenges and Title VII cases, the Supreme
Court has allowed reasonable initial showings of racial bias to shift the burden of production to
the alleged discriminator. In McCleskey the Court distinguished the statistics presented in death
sentence cases from jury selection or Title VII cases because the latter involved a far smaller
number of entities and variables.
As the Court is well aware, the Supreme Court has had a history of reversing precedent
particularly in the realm of basic human civil rights. Although the evidence presented in the
Defendant’s case is distinguishable than in McCleskey because it relates to the race of the
Defendant, the Court should consider the history behind McCleskey and its true applicability
with the current state of social mores.
WHEREFORE, Mr. Loyd requests that the Court preclude the death penalty due to an
equal protection violation, or in the alternative require the State to present rebuttal evidence, or
hold a pre-trial evidentiary hearing where counsel for the Defense can further present the
Defendant’s claim.

I HEREBY CERTIFY that a copy of this Motion has been emailed to the Office of the
State Attorney on this 6th day of September, 2018.

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was provided via E-
Service to the Office of the State Attorney on this 6th day of September 2018.

/S/Terence Lenamon, Esquire

Florida Bar No. 0970476
Law Offices of Terence M Lenamon P.A.
245 SE 1st Street
Suite 404
Miami, FL 33131
305-373-9911
Attorney for the Defendant

/S/Teodoro Marrero, Jr., Esquire

Florida Bar No. 818127
tmarrero@mrlawfl.com
MARRERO LAW FIRM, P.A.
100 South Orange Avenue
Suite 300
Orlando, Florida 32801
407.459.1226
FAX 407.915.4137
Attorney for the Defendant

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