Defense lawyers insist that Florida's intended death penalty "fix" is unconstitutional because it does not require unanimous jury recommendations for death sentences to be imposed.
The lawyers weighed in on the issue at the request of the Florida Supreme Court, which is grappling with the fallout from a new law sparked by a U.S. Supreme Court decision that struck down the state's death-penalty sentencing process as unconstitutional because it gave too much power to judges, and not juries.
Since the Jan. 12 ruling in the case known as Hurst v. Florida, 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 ruling. Meanwhile, lawmakers and Gov. Rick Scott hurried to approve the fix to try to address the constitutional issues.
But earlier this month, the Florida Supreme Court asked lawyers in a case slated for arguments in June to file additional briefs addressing "whether the provision in (the new law) requiring that 'at least 10 jurors determine that the defendant should be sentenced to death' is unconstitutional under the Florida and United States Constitutions."
The request for the supplemental briefs came in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son. The court is poised to answer whether the Hurst decision rendered Florida's death penalty unconstitutional and, if not, whether the new law applies to pending prosecutions for capital offenses that occurred prior to the statute's March 7 effective date.
The May 5 order for briefs on the unanimity issue --- a flashpoint for prosecutors, defense lawyers and lawmakers during the legislative debate after the Hurst ruling --- "reflects the fact this is now the important question before the Florida Supreme Court in trying to resolve how to move forward," said Marty McClain, a defense lawyer who has represented more than 200 defendants facing the death penalty and who co-authored one of the friend-of-the-court briefs in the Perry case.
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.
"The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough," Justice Sonia Sotomayor wrote for the majority. "This right required Florida to base Timothy Hurst's death sentence on a jury's verdict, not a judge's factfinding."
Under the new law, juries must unanimously find the existence of at least one aggravating factor before the death penalty can be imposed. The law also requires juries to find that sufficient aggravators exist to justify the imposition of a death sentence, and that sufficient aggravators outweigh mitigating circumstances. In addition, the law requires at least 10 jurors to recommend death.
The plain language of the Hurst opinion means that the new statute is unconstitutional because all Florida jury verdicts require unanimous decisions, Perry's lawyers, J. Edwin Mills and Frank Bankowitz, argued in a brief filed last week.
"While the revised statute used the word 'recommendation' to describe the jury's penalty phase verdict, this is a misnomer because if three or more jurors vote to 'recommend' life, the judge is now required to impose a life sentence. Thus, under the revised statute, the jury is now essentially the sentence," the lawyers wrote.
Perry's lawyers asked the court to find that the new law is unconstitutional and hold that life imprisonment is the maximum sentence, or to "construe the statute to require unanimity on the jury's requisite factual findings and a jury death-penalty verdict in conformity with Florida law and the Florida and federal constitutions."
But lawyers for Attorney General Pam Bondi, whose office represents the state in death penalty cases, argued that the new law is constitutionally sound.
"The recommendation for a death sentence or life imprisonment (under the new law) is not analogous to a jury verdict," Senior Assistant Attorney General Carol Marie Dittmar wrote in a brief filed Thursday. "Notably, the statute refers to the jury's determination as a recommendation, and the term 'verdict' is not used at all."
The new law also allows judges to reject a jury recommendation of death in favor of life imprisonment without parole, and did away with a provision in the old law that allowed judges to override recommendations of life in prison.
"Since only the jury recommendation of life is binding on the judge, any death recommendation cannot be considered a 'verdict' so as to require unanimity under Florida law," Dittmar wrote.
While the Supreme Court ponders the issue, a Miami-Dade County circuit judge ruled last week that the new law is unconstitutional because it does not require unanimous jury recommendations. Bondi's office will fight that ruling in an appeals court.
Of the 31 states with the death penalty, Florida is one of only three that do not require unanimous jury decisions for death to be imposed. The other two states --- Alabama and Delaware --- are reassessing their death penalty sentencing structures in the aftermath of Hurst. The Delaware Supreme Court is slated to hear oral arguments addressing a number of questions related to the Hurst decision, including unanimity, in June.
During the legislative session earlier this year, the House and Senate, which wanted unanimous jury recommendations for death, were divided on the issue before finally settling on the 10-2 recommendation.
"A right guaranteed by the Florida and United States Constitutions cannot be bargained away by a legislative compromise," 10thJudicial Circuit Public Defender Rex Dimmig wrote in a friend-of-the-court brief. "To allow a non-unanimous verdict only in cases where the ultimate penalty is to be decided stands the Eighth Amendment 'death is different' principle on its head."