Florida's Revised Death Penalty Law Fails Early Test

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By Lance J. Rogers

May 10 — A new law allowing Florida juries to impose death sentences by a mere 10-2 vote violates the state constitutional mandate that verdicts be unanimous, a state trial judge announced May 9.

This is the first test of the new scheme, which Florida lawmakers cobbled together after the U.S. Supreme Court in 2015 struck down the old capital punishment law because it gave judges too much authority to make the critical factual findings necessary to impose death.

Matter of Life and Death

Majority rule is good enough for a variety of decisions made by the political branches of government, Miami-Dade Circuit Judge Milton Hirsch said in his order granting Karon Gaiter's motion to declare Fla. Stat. § 921.141 unconstitutional.

“But for the ultimate decisions made within the judicial branch of government—guilty or not guilty, life or death—majority rule is insufficient.”

“A majority or super-majority rule discourages a careful sifting of the evidence and of the arguments of counsel,” Hirsch added.

The ruling comes just two months after Florida Gov. Rick Scott (R) signed the new law.

Gaiter is charged with one count of first-degree murder.

More Than ‘Arithmetic.'

Florida lawmakers were forced to modify the state's capital sentencing scheme when the U.S. Supreme Court, by a vote of 8-1, declared it unconstitutional in Hurst v. Florida, 2016 BL 7258 (U.S. 2016) (98 CrL 333, 1/20/16).

The justices ruled that the old protocol, under which capital sentencing juries gave non-unanimous advisory verdicts and left it to a judge to decide whether the aggravating and mitigating circumstances warranted execution, put too much power in the hands of judges.

Hurst Reargued

On remand to the Florida Supreme Court, lawyers for Timothy Hurst on May 5 argued that the flaws in the old law mean Hurst should receive a life sentence.

If the justices agree, the decision might mean that all 390 inmates on Florida’s death row would have their death sentences converted to life sentences.

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's recommendation is not enough,” the high court said in an opinion by Justice Sonia Sotomayor.

The Florida Legislature fixed the statute by requiring that the jurors agree unanimously on the existence of aggravating factors and that at least 10 of the 12 jurors agree to recommend death. A judge can't impose a death sentence without that recommendation.

“Arithmetically, the difference between twelve and ten is slight,” Hirsch wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

A spokesperson for the Miami-Dade Office of the State Attorney said the state would appeal.

Most States Require Unanimity

In his order, Hirsch conceded that there is little “decisional law” supporting his conclusion that Florida requires unanimous verdicts as a matter of constitutional doctrine.

But that's because the framers of the state constitution never bothered to articulate the “simple tautology” that the right to a jury included the right to a unanimous verdict, he said.

“For centuries, throughout the English-speaking world and certainly in America, trial by jury was universally and without exception understood to include and require a unanimous jury verdict,” Hirsch wrote.

Florida's use of the non-unanimous verdict makes it an outlier among death penalty states.

According to a 2015 American Bar Association report, the vast majority of U.S. jurisdictions that have capital punishment require that a jury’s recommendation of death be unanimous.

A bill that would have allowed non-unanimous jury verdicts in capital cases was voted down by the Georgia Legislature March 20 and a similar proposal was scuttled by Colorado lawmakers Feb. 10.

In Apodaca v. Oregon, 406 U.S. 404 (1972), the Supreme Court held that federal juries must reach criminal verdicts unanimously, but that the 14th Amendment doesn't impose the unanimity rule on the states.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full text of trial court order available at http://src.bna.com/ePV.