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Bill would require unanimity in death penalty cases

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Bill would require unanimity in death penalty cases

Senior Editor

Calling it an “agonizing decision,” former prosecutor Rob Bradley gave his “yes” vote when the Senate Criminal Justice Committee favorably reported out a bill that would remove Florida as an outlier state and require jurors to be unanimous when voting for the death penalty in capital cases.

Sen. Rob Bradley “Any time dealing with the death penalty, my first thought. . . is that there is someone who died unnecessarily, often horribly, and they have a family that survived and demands and deserves justice,” said Sen. Bradley, R-Orange Park.

“I also agree.. . that if this bill were to become law, it would invite litigation on due process claims.. . . But that’s not the question before us.

“Even though it’s agonizing, I think it’s time. I think it’s time that Florida no longer be an outlier on this issue. The most important issue that we ask our jurors to consider is an issue of whether the death penalty is appropriate for someone who’s murdered somebody. And it’s literally a question of life or death, and it should be a hard decision for all 12 members of that jury.”

The committee moved the bill 5-0.

When a person is convicted of first-degree murder in Florida, the only sentencing choices are death or life in prison with no chance of parole.

Currently, Florida, Alabama, and Delaware are the only three of 31 death penalty states requiring jury participation that do not require a unanimous recommendation for death. In Alabama, a 10-2 vote is required, where in Florida only a majority 7-5 vote is required.

As Matt Willard, co-chair of the Legislative Committee of the Florida Association of Criminal Defense Lawyers, told the senators: “Your consideration of this bill is especially important because a week ago today the U.S. Supreme Court committed itself to reviewing our death penalty process. [ Timothy Lee Hurst v. State of Florida, Case No. 14-7505 ]

“This Legislature can act now and pass this bill, so that regardless of the Supreme Court’s decision, there will be no delay in our death penalty cases. This bill is not an anti-death penalty bill. This bill is about making our death penalty process fair and reliable.”

But Eighth Circuit State Attorney Bill Cervone, representing the Florida Prosecuting Attorneys Association, urged the opposite.

“It would be our suggestion that the Legislature should not tamper with existing law when we know that that law is going to be before the United States Supreme Court again. It is, in my view, impossible, if not reckless, to suggest that any of us knows what the United States Supreme Court is going to do when they review that case. And the last thing I think any of us want is for the legislative body to make any change that then suddenly is afoul with whatever the United States Supreme Court does, whenever it renders whatever opinion it does, whether it be this calendar year or next year.”

Former ABA President Sandy D’Alemberte pointed out that a decade ago, in State of Florida v. Steele, 921 So. 2d 538 (Fla 2005), then Justice Raoul Cantero signaled a warning, writing: “In light of developments in other states and at the federal level, the Legislature should revisit the statute to require some unanimity in the jury’s recommendations.. . . We ask the Legislature to revisit it to decide whether it wants Florida to remain the outlier state.”

Current ABA President William Hubbard wrote to Florida legislative committee chairs in support of the SB 664, sponsored by Sen. Thad Altman, R-Cape Canaveral, and HB 139, sponsored by Rep. Javier Rodriguez, D-Miami, and Rep. Clovis Watson, Jr., D-Gainesville.

In his March 9 letter, Hubbard wrote that while the ABA “takes no position on capital punishment generally, we have extensively studied the operation of the death penalty in the U.S. criminal justice system and have taken the position that governments should take great care to ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and minimize the risk that innocent persons may be executed.”

Toward that end, the ABA approved a policy at its February House of Delegates meeting that urges a unanimous jury recommendation for death, and unanimous jury votes on aggravating factors, in standing by “the vital and time-honored role of the American jury as fact-finder, expressing the ‘conscience of the community.’”

SB 664 not only would require jurors in the penalty phase of a capital trial to vote unanimously for the death penalty, it would require the jury to certify in writing aggravating circumstances, and the sentencing judge would be limited to only consider those aggravating factors unanimously found to exist by the jury.

Just before the favorable vote, Sen. Altman said, “Thank you for giving us a hearing.. . . It deserves deliberation by our elected body. We know the United States Supreme Court has looked at this issue and feels it’s worthy of their review. Ultimately, we are responsible. It’s our law and I think we need to do the same.”

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