Senate panel backs unanimity in death sentences

By DARA KAM
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, February 8, 2016…… After hearing from a former prisoner who spent 17 years on Florida's Death Row for a crime he didn't commit, the Senate Criminal Justice Committee unanimously approved a measure that would overhaul the state's death-penalty sentencing structure.

Monday's action by the Senate committee puts the upper chamber at odds with the House over how to address a U.S. Supreme Court decision, in a case known as Hurst v. Florida, that overturned the state's death-penalty sentencing system.

Last month's 8-1 ruling, which centered on the sentencing phase of death-penalty cases after defendants are found guilty, dealt with what are known as "aggravating" circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determination of such aggravating circumstances be made by juries, not judges.

Under Florida law, juries make recommendations regarding the death penalty, based on a review of aggravating and mitigating circumstances, but judges ultimately decide whether defendants should be put to death or sentenced to life in prison.

The Senate proposal (SB 7068) would require unanimous decisions on at least one aggravating factor and would also require a unanimous jury recommendation for the death penalty to be imposed. Under current law, a majority of jurors has to decide that at least one aggravator exists, but juries are not required to provide information about the votes on each of the aggravators.

A House measure (PCB CRJS 16-07), backed by state prosecutors, would require unanimity for the aggravators, but would only require a 9-3 vote to recommend death. The House bill will get a second vetting Wednesday.

Of the 32 states with the death penalty, Florida is one of only three states --- including Delaware and Alabama --- that do not require unanimous jury decisions for capital punishment. Like Florida, Delaware recently issued a moratorium on executions while the state Supreme Court considers the impact of the Hurst case.

Sen. Rob Bradley, a former prosecutor, grilled 5th Judicial Circuit State Attorney Brad King about the 9-3 jury recommendation, asking if any other state had a lower bar for the death penalty.

"I support the death penalty…but I also have a duty to craft laws that will survive constitutional scrutiny from our courts," Bradley, R-Fleming Island, said.

King repeatedly sidestepped the question, saying that Florida's "system" differs from that of other states.

"And they just found our system to be unconstitutional," Bradley pointed out. "Our correcting of that would be to have the lowest threshold of any other state."

With the exception of the state attorneys, other death penalty experts are recommending unanimity for death sentence recommendations, as is required for jury verdicts in other cases. Because nearly all of the other states with the death penalty require unanimity for death sentences, being so outside of the mainstream puts Florida at risk in a future Supreme Court case, the experts warned.

But, echoing arguments he has made at previous hearings on the issue, King said requiring a unanimous recommendation would allow a single juror to "hijack" the process.

Under questioning from Bradley, King said prosecutors suggested the 9-3 jury recommendation but had discussed whether "10-2 might be the number we might land on."

Asked by Bradley if the state attorneys support the 10-2 jury recommendation, King said, "It was more, honestly, a political evaluation of where everybody stood."

Lawmakers are under pressure to come up with a fix for the death penalty sentencing before the 2016 session ends March 11.

The Florida Supreme Court last week indefinitely postponed the scheduled Feb. 11 execution of Cary Michael Lambrix, shortly after hearing arguments that concentrated on the impact of the Hurst decision on Death Row inmates. A flurry of appeals from other Death Row inmates is expected.

Before voting on the measure without any debate Monday, the Senate panel heard from Juan Melendez, who said he spent "17 years, eight months and one day on Death Row for a crime I did not commit." Melendez, who was exonerated in 2002, told the committee that the jury recommendation for death in his case was 9-3.

Melendez said "it makes no sense" that jury recommendations not be unanimous when all other jury votes are.

"You always can release an innocent man from prison. But you can never and I repeat, never release an innocent man from the grave. Your bill would encourage deliberation when you're considering a death sentence," he said.