Shearman & Sterling achieved a major pro bono victory for our client, Ted Herring, who had been sentenced to death in the state of Florida. On March 31, 2017, the Supreme Court of Florida declared Herring’s death sentence unconstitutional and reduced the sentence to life in prison. The Court agreed with the firm’s arguments that Herring was death-ineligible pursuant to the United States Supreme Court’s decisions in Atkins v. Virginia and Hall v. Florida. Shearman & Sterling has represented Herring in challenges to his death sentence for approximately 35 years.

Herring's death sentence has been the subject of numerous decisions by the Supreme Court of Florida and the United States Court of Appeals for the Eleventh Circuit over the years. In 2006, as a result of the United States Supreme Court’s decision in Atkins v. Virginia, which held that the execution of a person with intellectual disability (then referred to as mental retardation) is cruel and unusual punishment in violation of the Eighth Amendment, Herring’s team at Shearman & Sterling conducted a multi-day evidentiary hearing in support of his claim of intellectual disability. After the hearing, the trial court determined that the firm had established by clear and convincing evidence that Herring’s intellectual disability rendered him death-ineligible and vacated his death sentence. However, the Supreme Court of Florida then reversed that decision because, in its view of the law at the time, Herring had measured IQ scores in excess of a bright-line cutoff of 70.

Subsequently, however, the United States Supreme Court determined, in Hall v. Florida, that Florida’s application of a bright-line IQ score cutoff is unconstitutional because, as Shearman & Sterling had argued in Herring’s case (successfully at the trial court level, but unsuccessfully on appeal), it is inconsistent with accepted diagnostic criteria for intellectual disability, which takes into account a variety of factors including the standard of error in IQ testing. Shearman & Sterling then argued to the Florida Supreme Court that Herring’s death sentence should be vacated once and for all in light of Hall. In its decision last week, the Florida Supreme Court agreed and reduced Mr. Herring’s death sentence to a lighter sentence in its 5-2 decision, rejecting arguments that the question of Mr. Herring’s intellectual disability should be retried, given the trial court’s earlier determination that he met the criteria for the disability.

Jeremy Epstein, a former Shearman & Sterling partner and head of the firm’s Litigation Group, originated the firm’s representation of Ted Herring in the early 1980s and, along with current litigation partners Alan Goudiss and Adam Hakki, represented him at the evidentiary hearing at which Herring’s intellectual disability was successfully established. Goudiss and Hakki, both of whom have represented Herring since they respectively joined the firm upon graduation from law school, along with litigation partner Jaculin Aaron, associates Joshua Ebersole, Benjamin Klebanoff and Michael Brett, and legal assistant Karen Prosky, represented Herring in obtaining last week’s victory in the Florida Supreme Court.

The Team