The Coastal Star

Along the Coast: Judge: ‘Harmless error’ did not change outcome for Owen

By Noreen Marcus

The court-appointed lawyer for double-murderer Duane Owen has promised to appeal a judge’s order that imperils Owen’s attempt to get off Florida’s Death Row.
Palm Beach Circuit Judge Glenn Kelley’s May 9 ruling does not move Owen any closer to turning his death sentence for the murder of 14-year-old Karen Slattery into a life sentence.
Kelley decided that no reasonable jury would have shown leniency toward Owen if the panel had been correctly instructed according to today’s standards. The heinous, atrocious and cruel nature — abbreviated in legal terms as HAC — of his crime was too well established, the judge found.
“While this court is not tasked with weighing the evidence of HAC, the court must determine based on the record whether a properly instructed jury would find beyond a reasonable doubt the existence of HAC in the killing of Karen Slattery. There is no doubt that a rational jury would so find,” he wrote.
Owen, 57, was convicted of two horrific murders in Palm Beach County two months apart and 34 years ago.
On March 24, 1984, he broke into the Delray Beach house where Slattery was babysitting. Owen stabbed her 18 times and raped her before escaping.
On May 28, 1984, he used a hammer to kill Georgianna Worden after breaking into her Boca Raton home. Worden, 38, a college instructor and mother of two, also was raped.
The next day Worden’s body was discovered and Owen was picked up elsewhere on a burglary charge. Police in Boca Raton and Delray Beach worked together to link him to the homicides.
Owen had already been convicted of killing Worden and sentenced to death when he was tried for killing Slattery. The jury recommended death with a 10-2 vote and the judge imposed the death penalty.
In recent years that 10-2 split verdict has become a problem for prosecutors. The U.S. Supreme Court ruled two years ago in Hurst vs. Florida that Florida’s capital sentencing process was unconstitutional because the judge — not the jury — effectively decided the convict’s fate.
Since then the Florida Supreme Court has applied the Hurst ruling to require resentencing in some newer cases, using June 24, 2002 (the date a related case, Ring vs. Arizona, was decided) as the cutoff. And now a unanimous jury verdict is required to impose the death penalty.
The Worden case was too old to qualify for resentencing under Hurst; the Slattery sentencing qualified.
Still undecided is whether a Hurst violation in a split-verdict case can be overcome by a finding of what is called harmless error. That was the basis for Kelley’s ruling, and experts say it’s likely to wind up in the Florida Supreme Court, and perhaps the U.S. Supreme Court, for a final determination.
Karen Gottlieb, co-director of the Florida Center for Capital Representation at Florida International University, is not involved in the Owen case, but she has been following it closely.
Gottlieb said she thinks all Florida Death Row inmates who qualify on the merits under Hurst should be resentenced.
“It’s just basically wrong to have a dividing line based on a particular date,” she said. “The Florida statute didn’t become unconstitutional on June 24, 2002. It’s the same statute it was before and the same statute it was after that date.
“It gets confusing when we look at the facts and say nobody wants him to avoid the death penalty,” Gottlieb said of Owen. “I think everyone should want him to have a constitutional death penalty proceeding. It comes back to the rule of law.”

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