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April 1, 2013
Bill seeks unanimity in recommending death

Florida is the only state in the country that allows jurors in the penalty phase of a murder trial to recommend the death sentence by a simple majority vote. The final sentencing decision is left up to the trial judge, who must give the jury’s recommendation “great weight.”

Sen. Thad Altman Hoping to change that to a unanimous jury vote in the penalty phase of a murder trial ­— as is required in the guilt-or-innocence phase — is Sen. Thad Altman, R-Melbourne, and Sen. Darren Soto, D-Kissimmee, who have filed SB 148, and Rep. Mark Pafford, D-West Palm Beach, who has filed the identical HB 961.

As Altman explained at a March 11 meeting of the Senate Criminal Justice Committee — that heard testimony but ran out of time to vote — SB 148 would make four changes to the death sentencing law in Florida:

* The jury must first find that sufficient aggravating circumstances exist and they are not outweighed by mitigating evidence.

* The jury must agree by a unanimous vote on any aggravators which support the jury’s death recommendations.

* The jury’s vote on aggravating circumstances must be recorded on a special jury form.

* The jury must also agree unanimously to recommend the death penalty.

Retired Florida Supreme Court Justice Harry Lee Anstead was among those testifying in favor of the proposed legislation.

“I am here because I very much appreciate Sen. Altman taking the bull by the horns and grappling with an issue that has hovered like a cloud over Florida’s death penalty scheme for some time,” Anstead said.

Anstead gave a legal lesson on guiding United States Supreme Court cases. After holding the death penalty unconstitutional in Furman v. Georgia in 1972, Anstead explained, the high court’s message was if you are going to have a death penalty, it must be reserved for the “worst of the worst” murders and it should applied to a class of cases where there is the most certainty.

A more recent U.S.S.C. decision, Anstead explained, is Ring v. Arizona, when in 2002, a unanimous court ruled that “any aggravating circumstance that is found by a jury to merit the imposition of the death penalty must be found by the same standards and in the same manner as an element of the crime, i.e. an element of first degree murder, would be required to be found by the jury in the case. . . .

“Our scheme in Florida does not provide for the Ring requirements specifically,” Anstead said. And, Anstead added, “there have been no cases where the U.S.S.C. has ruled that Florida passes muster under this Ring decision. . . .

“I commend Sen. Altman, because, essentially, he is saying, ‘Let’s remove this cloud. Let’s remove this danger that is here.”

Also discussed at the committee was the 2005 Florida Supreme Court opinion in State of Florida v. Alfredie Steele, in which then Justice Raoul Cantero wrote the majority opinion that called on the Legislature to consider requiring a unanimous jury to impose the death penalty.

SB 148 was on the Senate Criminal Justice agenda on March 18, but again the committee ran out of time to take it up for a vote.

[Revised: 12-02-2016]