The Florida Supreme Court on Tuesday heard arguments in a case focused on whether the state's new death penalty law is constitutional, and, if so, whether it applies to cases already in the pipeline when the law passed in March.
Tuesday's hearing was the latest in the court's months-long scrutiny prompted by a U.S. Supreme Court decision in January that struck down Florida's death-penalty sentencing process because it unconstitutionally gave too much power to judges, instead of juries.
But the arguments Tuesday in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son, did little to clear up the murky situation surrounding the January ruling, in a case known as Hurst v. Florida, or the new law, hurriedly crafted by lawmakers and signed by Gov. Rick Scott in response to the decision.
"Clearly, at this stage in our jurisprudence, we want to make sure that the statute is construed in a constitutional manner so that we don't have another 15 years of death penalty — if the state wants the death penalty, which apparently it does — in flux," said Justice Barbara Pariente.
Under Florida's old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that "sufficient" aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed.
That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.
Florida's new law requires juries to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.
Of nearly three dozen states that have the death penalty, Florida is one of just three — including Alabama and Delaware — that do not require unanimous recommendations for a sentence of death.
The lack of a unanimous recommendation — a flashpoint for lawmakers, prosecutors and defense lawyers during debate on the new law — was the focus of much of Tuesday's hearing in the Perry case.
Because Florida's Constitution requires that jury verdicts be unanimous for convictions, defense lawyers have argued that the death penalty should require a unanimous jury recommendation. Prosecutors, including Attorney General Pam Bondi's office, disagree.
Chief Justice Jorge Labarga honed in on the issue Tuesday morning.
"As you know, 32 states in our country have the death penalty. There are three states who are outliers in this country, Alabama, Delaware and Florida that only require something less than unanimous. … What is the history of Florida in requiring a unanimous verdict?" Labarga asked Martin McClain, a lawyer who has represented more than 250 defendants condemned to death and who made arguments Tuesday as a "friend of the court."
"It's always been that way in Florida. Since before it was a state, Florida required unanimity in criminal cases for convictions," McClain replied.
Since the Jan. 12 Hurst ruling, Florida's high court indefinitely put on hold two executions and heard arguments in more than a dozen death penalty cases, repeatedly asking lawyers on both sides about the impact of the U.S. Supreme Court decision. The Florida court has yet to rule on whether the Hurst decision should be applied retroactively to all, or even some, of Florida's 390 Death Row inmates.
Perry's case, meanwhile, hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect. While Perry's lawyer, J. Edwin Mills, argued that the new law should not apply in his client's case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.
Adding more pressure to the justices — who spend much of their time considering appeals in capital cases — lower courts have delayed hearings or decisions in death penalty cases while waiting for Florida Supreme Court to rule, both on the impact of the Hurst decision and on the Perry case.
"Until we get moving forward again, and get a determination from this court as to what Hurst actually means, everything is just sort of up in the air, which is not a good solution for anybody,” Assistant Attorney General Carol Dittmar told the justices Tuesday.
The court's task won't be easy, McClain told reporters after the hearing.
"When you've got two ambiguous things that are confusing, and you are trying to pull them all together, it just makes it even more difficult. I think that, in watching the oral argument, the court is struggling to try to figure out a way to read everything in a coherent, consistent fashion,” he said. "This is the first time since 1973 that the death penalty statute in Florida has been rewritten. Whenever you rewrite something major like this, you go through a period of adjustment where you are trying to figure out what everything means."