Jury’s Death Penalty Vote in Florida Must Be Unanimous

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By Lance J. Rogers

Oct. 18— A jury’s vote in a capital punishment case must be unanimous in every respect before a sentence of death may be imposed, a divided Florida Supreme Court ruled Oct. 14 ( Hurst v. State , 2016 BL 343307, Fla., No. SC12-1947, 10/14/16 ).

“In failing to require a unanimous recommendation for death as a predicate for possible imposition of the ultimate penalty, Florida has been a clear outlier,” the court said in its 5-2 per curiam opinion.

In a separate decision released the same day, the court announced that the new unanimity requirement invalidates Florida’s seven-month old capital punishment law, which allowed juries to impose a death sentence by a vote of 10-2, so long as they unanimously agreed on the existence of aggravating factors ( Perry v. State , 2016 BL 343305, Fla., No. SC16-547, 10/14/16 ).

Of the 31 states that still had the death penalty when the U.S. Supreme Court decided Hurst v. Florida, only three didn’t require unanimity in the final verdict or recommendation: Florida, Alabama, and Delaware.

Back to the Drawing Board

Florida legislators passed the new law, Fla. Stat. § 921.141, in the wake of the U.S. Supreme Court’s ruling in January that dismantled the state’s hybrid capital sentencing scheme.

The justices by a 8-1 vote held that Florida’s unique procedure violated the Sixth Amendment because it relegated the jury to an advisory role and left it to the judge to make the ultimate decision on whether to sentence a capital offender to death ( Hurst v. Florida, 2016 BL 7258 (U.S. 2016) ( 98 CrL 333, 1/20/16).

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” Justice Sonia Sotomayor wrote for the court.

On remand, the Florida Supreme Court ordered that Timothy Lee Hurst should be resentenced for murdering a co-worker in 1998 because the constitutional error wasn’t harmless, and it further concluded that the revamped law was fatally flawed because it didn’t require that all the jury’s votes in capital cases be unanimous on every critical finding.

This includes “the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances,” the court said.

Unanimity is not only required under the federal constitution but it is also required as a matter of state constitutional law, the court said.

‘Death Is Different.’

Justice Charles T. Canady dissented in both Hurst and Perry, arguing that the new Florida statute was constitutional because it fixed the lone flaw identified by the U.S. Supreme Court. Hurst said nothing about requiring all votes to be unanimous, Canady said. Justice Ricky L. Polston joined Canady’s dissent.

But the five justices sitting in the majority disagreed. The U.S. Supreme Court made clear that the “critical findings” necessary to impose death are the sole province of the jury, the court said. Critical findings includes the elements of the crime and Florida juries have always been required to be unanimous in finding the elements of the crime, it added.

Floridians Favor Unanimity Rule

A poll conducted in January by Public Policy Polling found that 73 percent of Floridians favored requiring juries to make unanimous decisions in death penalty cases. A majority of the respondents (57%) strongly support a unanimity requirement.

The court conceded that a plurality of the justices in Apodaca v. Oregon, 406 U.S. 404 (U.S. 1972) concluded that the Sixth Amendment doesn’t guarantee a unanimous verdict in criminal cases and that states are allowed to craft their own unique rules on that score. But it said that decision wasn’t controlling for several reasons, one of which is that “death is different.”

“In addition to the requirements of unanimity that flow from the Sixth Amendment and from Florida’s right to trial by jury, we conclude that juror unanimity in any recommended verdict resulting in a death sentence is required under the Eighth Amendment,” the court said.

Justice James E. C. Perry concurred with the majority’s finding that the jury verdict must be unanimous in death cases, but dissented from the conclusion that Hurst should be resentenced.

Hurst should automatically be sentenced to life under Fla. Stat. § 775.082(2), which provides that “a person previously sentenced to death for a capital felony” must be sentenced to life imprisonment if “the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court,” Perry said.

The Florida Attorney General’s Office represented the state in both cases. The Office of the Public Defender represented Hurst. Edwin Mills and Frank J. Bankowitz III, Orlando, Fla., represented Perry.

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

Hurst is available at http://src.bna.com/jsk. Perry is available at http://src.bna.com/jsm.

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