Attorney General James Uthmeier’s office Sunday urged the Florida Supreme Court to reject arguments aimed at halting next week's scheduled execution of Bryan Frederick Jennings in the 1979 rape and murder of a 6-year-old girl in Brevard County.
State attorneys disputed a series of arguments made by Jennings’ lawyers, including that he should have a new clemency review and that his due-process rights were violated because of a lack of legal representation in state courts over a three-year period until Gov. Ron DeSantis signed his death warrant Oct. 10.
Jennings’ lawyers also have made the legal-representation arguments in other state and federal court cases since the death warrant was signed. U.S. District Judge Mark Walker on Thursday rejected the arguments in a federal-court case; two other cases remain pending at the Florida Supreme Court.
Jennings, 66, is scheduled to be executed Nov. 13 in the May 11, 1979, murder of 6-year-old Rebecca Kunash in Merritt Island. A 1986 sentencing order included with documents posted on the Supreme Court website said Jennings in the early morning hours went to the window of the child’s bedroom and saw her asleep. He kidnapped her and took her to an area of Merritt Island, where she was raped and murdered, according to court documents.
In a brief filed Friday at the Supreme Court after a Brevard County circuit judge turned down their arguments, Jennings’ lawyers pointed to the inmate being denied clemency in 1989. The brief said he should receive an updated clemency review to consider factors that could help determine whether he should be executed.
“In the 36 years since Mr. Jennings was denied clemency, six different governors have held office in Florida,” Jennings’ lawyers wrote. “Thus, any information in Mr. Jennings’ clemency application is based on outdated diagnoses, outdated neuroscientific evidence, outdated recitations of the law and rules of executive clemency, without the benefit of the wealth of information found on the internet, and without review from at least five different governors.”
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But in the response filed Sunday, state attorneys wrote that “information Jennings cites as purportedly warranting a new clemency proceeding has long been known to him” but that he did not request a new clemency proceeding. Also, the response said clemency “lies wholly within the governor’s discretion, and this (Supreme) Court has held that the failure to conduct an updated clemency proceeding does not bar the governor from signing a death warrant.”
The argument about Jennings not having legal counsel in state courts stems from the death in 2022 of his attorney, Martin McClain. Jennings did not have new state-court lawyers until after the death warrant was signed.
The due-process claim, in part, involves contentions that his new lawyers have not had adequate time to develop a case to try to prevent the execution.
“In order to adequately prepare for and competently conduct litigation under the time constraints of an active death warrant, counsel should have at least represented the client for more than a week,” the brief filed Friday said.
But the state responded Sunday that Jennings had legal representation in federal courts over the past three years and that he also could have requested an attorney for state-court proceedings.
“If Jennings had wanted new state counsel appointed upon McClain’s death or at any time prior to the signing of the death warrant, or if he became aware of any new information that could have formed the basis for a new collateral claim, he could have raised that issue through his federal counsel or the trial (circuit) court,” the state attorneys wrote. “At no point has Jennings been deprived of notice or an opportunity to be heard.”
Jennings is scheduled to be the 16th inmate executed in Florida this year — a modern-era record for a year. The previous record for executions in a year was eight in 1984 and 2014. The modern-era represents the period since the death penalty was reinstated in 1976, after a 1972 U.S. Supreme Court opinion halted it.
