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Death penalty fix compromise set

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Death penalty fix compromise set

Senior Editor

Rushing to fix Florida’s unconstitutional death penalty sentencing process that now puts executions on hold, the Legislature jumped into action and crafted two clashing bills.

But midway through the session, on February 17, a compromise was hammered out between the House and the Senate.

Rep. Ross Spano On the House floor the following day, an amended HB 7101 passed 93-20 that would change the current simple majority vote in the penalty phase of a first-degree murder trial to require a jury vote of 10-2 to recommend the death penalty.

The debate on the House floor brought 15 representatives to their feet to make impassioned arguments that ranged from government’s obligation to stop evil and bring closure to murder victims’ families, to pitches to make the process fairer by requiring unanimity as 28 out of 31 death penalty states require, to pleas to do away with the death penalty altogether.

“I don’t care what. . . other states do. This is the right public policy for the state of Florida,” said Rep. Ross Spano, R-Riverview, a lawyer and the bill’s co-sponsor.

Rep. Kionne McGhee, D-Cutler Bay, a criminal defense attorney, asked: “Colleagues, if we’re requiring jurors to get it right in all or nothing in the guilt phase, why are we reducing the number for the ultimate penalty?”

Rep. JoséJavier Rodriguez, D-Miami, a lawyer, who earlier had tried to bring the House to unanimity along with the Senate’s original bill, said “It doesn’t go as far as we should in an ideal world, but it goes farther than we have to.”

That evening, House Speaker Steve Crisafulli, R-Merritt Island, issued this statement: “Changing the requirement for a jury’s sentencing verdict to be agreed upon by at least 10 of the 12 jurors has moved us to a position where we have gone beyond what was asked of us by the Supreme Court. These reforms will allow us to keep the death penalty in our toolbox to punish our most violent criminals.”

Senate leaders confirmed that a deal had been worked out.

Lead-up to a Compromise
Before reaching that compromise, the House Judiciary Committee, on February 10, passed HB 7101 with a 17-1 vote that would require a super majority of jurors (9-3) to vote to recommend the death penalty, rather than the current simple majority (7-5) in the penalty phase of a first-degree murder trial.

It would also require a unanimous jury verdict on at least one aggravating factor before a defendant can be eligible for the death penalty.

The House version had the support of the Florida Prosecuting Attorneys Association and Attorney General Pam Bondi.

But the House version and the new compromise still keep Florida as an “outlier” state of only three out of 31 states with the death penalty not requiring a unanimous jury recommendation for death (along with Alabama and Delaware).

The Senate Criminal Justice Committee, on February 8, voted unanimously for SB 7068 to remove Florida from that outlier-state posture.

The Senate bill required not only a unanimous verdict on at least one aggravating factor, but also a unanimous jury vote to recommend the death penalty.

The judge would no longer be allowed to override a jury recommendation of life in prison with no chance of parole.

The Senate proposal was amended to also shift the burden of proof to prosecutors, by requiring that the jury find that aggravating factors must outweigh mitigating circumstances. Currently, the burden falls on the defendant to prove that mitigating circumstances outweigh aggravating factors.

The argument for the Senate version is that it will prevent more litigation down the road.

It had the support of the Florida Public Defender Association, former Supreme Court Justice Raoul Cantero, who wrote the majority opinion in the 2005 Steele case cautioning Florida should go the unanimity route in death cases; Mark Schlakman, who served on the ABA’s Florida Death Penalty Assessment Team; and The Florida Bar’s Public Interest Law Section, among others.

Causing this constitutional emergency is the U.S. Supreme Court ruling in Hurst v. Florida on January 12, the first day of Florida’s legislative session, that propelled strategy sessions, workshops, a flurry of bill drafting, and heated debate.

Writing for the majority in the 8-1 Hurst decision, Justice Sonia Sotomayor stressed that even though Florida’s unique process of requiring judges to place great weight on jurors’ sentencing recommendations, it wasn’t constitutional because judges could override jurors.

Giving judges the power to impose the death penalty, rather than jurors, is a violation of defendants’ Sixth Amendment right to trial by jury and is, therefore, unconstitutional, the Court ruled.

The 8-1 decision focused narrowly on aggravating factors that must be determined before defendants can be sentenced to death. Though the unanimity issue was briefed in the Hurst case, the Court did not address it.

The Florida Supreme Court on February 2 heard arguments in light of the Hurst decision, and indefinitely postponed the scheduled February 11 execution of Cary Michael Lambrix.

Playing It Safe
“There have been arguments that trends are going in certain directions and, therefore, we must go against or go with those trends. But trends are no substitute for precedent. Trends can change depending on who is president of the United States and those persons who decide to leave the United States Supreme Court,” said House Judiciary Chair Charles McBurney, R-Jacksonville, a lawyers, three days before Justice Antonin Scalia’s unexpected death on February 13.

“As recently as less than three years ago, and again a little more than two years ago, the Florida Supreme Court upheld non-unanimous juries in the recommendation of death sentences as constitutional.

“The United States Supreme Court has said that unanimity does not materially contribute to the exercise of common sense judgment. The court has treated Florida and its death penalty statutes as unique, but not unconstitutional.

“Certainly, we could play it safe. The safe course would be to have no death penalty at all,” McBurney said.

“But we already are safe in this legislation, as we go beyond what Hurst has recommended.”

Rep. Rodriguez scurried to file an amendment that would bring the House bill in compliance with the Senate bill, but he was shot down by Republicans on the House Judiciary Committee and chastised for not telling the bill’s co-sponsor, Rep. Carlos Trujillo, R-Doral, about his amendment before the meeting.

“We are in the midpoint of the session at this point. Things happen very quickly. This is attempting to put us in posture with the Senate, and the Senate voted this exact language out two days ago, unanimously, from the Criminal Justice Committee,” Rodriguez said.

“It is not intended in any way as a personal attack or politicizing the issue. To the contrary. If it’s taken that way, then I am very sorry for that.”

When it was clear his amendment was considered “unfriendly,” Rodriguez attempted to lay it on the table without a vote. But the committee voted instead to proceed to vote down the amendment.

Emotional testimony was heard from both sides. Two victim-witness counselors shared horrible details of their own loved ones’ murders, and said the jurors who put those convicted killers on death row were not unanimous in their recommendations for death. To require unanimity, they testified, would allow defendants who deserve death to keep living in prison.

A flesh-and-blood reminder of the fallibility of the death penalty was Juan Melendez, the 20th of 26 Florida death row exonorees, who told how he served 17 years, eight months, and one day on death row for a crime he did not commit.

“Your bill will encourage more thoughtful deliberations when considering a death sentence,” Melendez told the Senate Judiciary Committee, as he thanked them for requiring unanimity in jurors’ sentencing recommendations.

Dynamics of Death Penalty Jurors
Scott Sundby, associate dean and professor at the University of Miami College of Law, gave a glimpse into his research in the Capital Jury Project funded by the National Science Foundation.

Though jurors were unanimous in only 20 percent of Florida’s death cases, Sundby said if unanimity is required, jurors will more rigorously deliberate, instead of the current practice of usually taking one quick vote to get a simple majority recommendation.

Research shows that 92 percent of juries that voted 9-3 in favor of the death penalty returned the same result if required to reach a unanimous decision, said Sundby, who trains Florida judges about the death penalty. Not going to a unanimous jury verdict, he said, will invite litigation and “the odds of it being reversed by the Supreme Court are quite high.”

Fifth Circuit State Attorney Brad King told about the dangers of a “rogue juror” who could “hijack” the system. He gave the example of the Seattle case of Joseph McEnroe, convicted of killing six members of his ex-girlfriend’s family on Christmas Eve 2007.

With an 8-4 vote, the jury recommended life in prison, and King quoted a newspaper story that said one of the jurors took out her cell phone and played games rather than join in the life-or-death deliberations.

The Debate
A good chunk of debate in the Senate Criminal Justice Committee resembled cross-examination on a witness stand as Sen. Rob Bradley, R-Orange Park, a former assistant state attorney, questioned King:

Bradley: “Mr. King, I understand the prosecutors have taken a position. What is your position? Should it be 7-5?”

King: “I defer to my colleagues.”

Bradley: “But what’s your position?”

King: “I think 7-5 was legally and constitutionally appropriate, when you look at that recommendation, especially given now that we require the jury to find unanimously the aggravating factors. I think that is just part of the process that allows the judge to ultimately determine what the sentence ought to be.”

Bradley: “So you are at 7-5. Are there colleagues of yours that are elected state attorneys that would think unanimous is appropriate?”

King: “I don’t think there’s a single state attorney that thinks unanimous is appropriate.”

Bradley: “Are there any that think 11-1 should be it?”

King: “No.”

Bradley: “What about 10-2?”

King: “I don’t recall a 10-2. I recall 9-3, because that is 75 percent, and we could live with that because it’s a higher standard than anything else that we require in a veto.”

As the questioning continued, Bradley asked: “Are there any other states in the union that have 9-3?”

And King answered: “I would say no, with this caveat. Our system is not particularly the same system as everybody else.”

Bradley: “Because ours is unconstitutional.”

After much more give and take, King made a distinction between agreeing to unanimous jury verdicts on finding an aggravating factor, because it is in keeping with the jurors’ job as fact-finders — but not requiring unanimity on recommending death, because that is a moral judgment that voices the conscience of the community.

(Prospective jurors who say they could never vote for the death penalty are struck from serving in capital cases in which prosecutors seek the death penalty.)

Finally, Sen. Jeff Clemons, D-Lake Worth, said: “Just to encapsulate to make sure I’ve got it straight. Basically, your objection to unanimous and your support for 9-3 is it’s just harder to get a unanimous verdict of death, is that correct?”

King responded: “Well, yes, sir.. . You heard Mr. Sundby’s name and the jury study they did. He even recognizes that jurors have a hard time voting to actually impose death on another human being.

“It’s a hard thing. What we want to avoid, really and truly, are those jurors like happened in Seattle.. . . The problem with allowing one juror to veto, in essence, the whole process is exactly that. And there is no do-over.”

But 10th Circuit Public Defender Rex Dimmig, of the Florida Public Defender Association, asked how many millions of dollars and thousands of manpower hours Florida is going to spend just to prevent the possibility of a rare rogue juror.

Smart public policy to prevent costly future litigation, he said, is to fix Florida’s death penalty statute with unanimity now.

“Let us remember that we are not talking about someone walking free here. There are only two sentences for someone who is convicted of first-degree murder,” Dimmig said: life in prison with no possibility of parole or death by lethal injection.

“What we are talking about is whether someone will die in prison of natural causes in 40 or 50 years or however long it will be, or whether they will die executed in prison in 20 or 25 years, after massive amounts of litigation on the questions that Hurst left unanswered.”

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