Defense subpoenas Tampa state attorney in death penalty challenge

TAMPA — Defense lawyers for the man accused in the slaying of a Ruskin school teacher want Hillsborough State Attorney Susan Lopez and one of her prosecutors to testify in an upcoming hearing over her decision to seek the death penalty.

In a highly unusual move, the Office of Public Defender Julianne Holt, which represents Matthew Terry, issued subpoenas last week to Lopez and Assistant State Attorney Justin Diaz for their testimony at the Oct. 21 hearing.

The defense has asked a judge to strike down the state’s notice of intent to seek the death penalty against Terry, citing the circumstances that preceded the decision. They also listed ousted State Attorney Andrew Warren as a witness.

Lopez was appointed Aug. 4 to replace Warren, who was suspended the same day by Gov. Ron DeSantis. A day later, she reversed a decision Warren had made to not seek capital punishment in Terry’s case.

Assistant Public Defender Jamie Kane last month filed a written request for a judge to nix the state’s death notice, suggesting that it may have been the result of “improper political motive and intent.”

On Thursday, attorneys for the Florida Prosecuting Attorneys Association filed a legal paper on behalf of Lopez and Diaz, arguing that the effort to get them to testify is improper and asking a judge to cancel the subpoenas.

Terry, 47, is charged with first-degree murder in the death of Kay Baker, his then-girlfriend. Baker was a third-grade math and science teacher at Cypress Creek Elementary School in Ruskin. One of her neighbors found her lying in his yard May 28 in Lithia. She had been stabbed multiple times in her neck. She’d gone to a bar with Terry earlier that night.

Shortly after Terry’s arrest, Kane began discussing with Diaz, the prosecutor assigned to the case, whether the state would seek the death penalty, the defense attorney wrote in a court paper. Diaz told Kane the decision would ultimately rest with Warren, who was then the state attorney.

On July 21, Diaz made a presentation about the case to the State Attorney’s Office homicide committee. Afterward, Kane spoke with him. Diaz told him Warren still had yet to make a decision about whether to seek death. Almost two weeks passed with still no word of a decision.

Then, a little after 11 a.m. Aug. 3, Diaz sent Kane an email.

“My office has decided to NOT pursue the death penalty against Mr. Terry,” the prosecutor wrote.

Kane contacted Terry’s father and told him the state would not be seeking to execute his son. The father “expressed his immeasurable gratitude” and promised to keep the news between himself and his wife because he understood “the level of emotion involved on both sides of the case and would not want to offend anyone in any way.”

The next morning, Kane went to the Hillsborough County Jail to tell his client the state’s decision.

“Understandably, this news likewise came as a profound relief to Mr. Terry,” Kane wrote.

Neither of them knew that at that exact moment DeSantis was holding a news conference just down the road to announce that he was suspending Warren from office.

The governor cited statements Warren signed pledging not to prosecute cases relating to abortion or transgender health care, and Warren’s policies against prosecuting low-level misdemeanors.

Lopez, who DeSantis had appointed as a Hillsborough County judge in 2021, was among those who stood with the governor at the news conference.

Three days before Warren’s suspension, the governor offered Lopez the position of state attorney, Kane wrote. The next day, she traveled to Tallahassee to meet with the governor and accept the offer, Kane wrote. What they discussed is not publicly known.

She assumed the role of state attorney Aug. 4. The death notice against Terry was filed in court a little after 4 p.m. Aug. 5. It was exactly 45 days after Terry’s arraignment, the deadline in which state court rules require prosecutors to declare if they intend to seek capital punishment.

Unless a judge cancels the state’s notice, Kane wrote, “Mr. Terry will continue to twist in the wind, with his death by execution on or off the table based on extraneous political factors having nothing to do with him or his case, such as the outcome of the 2022 gubernatorial election, the outcome of Mr. Warren’s lawsuit contending that his removal from office was unlawful, and the outcome of the Florida Senate’s decision as to whether the suspension should be made permanent.”

Lopez’ office has not yet responded to the defense’s request.

The case continues to move rapidly through court. Unlike most defendants accused of serious crimes, Terry has not waived his right to a speedy trial. His three-week trial is set to begin at the end of this month.