For the second year in a row, Florida lawmakers will attempt to fix the state’s death penalty sentencing scheme in response to court rulings finding that the process is unconstitutional.
Incoming Senate President Joe Negron, who will take over as head of the Senate after the November election, said lawmakers will have to readdress the issue of jury unanimity, at the heart of rulings Friday by the Florida Supreme Court, when they reconvene next year.
“It’s going to be a unanimous verdict requirement going forward,” Negron, R-Stuart, said.
The court on Friday ruled that a statute, passed in March by lawmakers in response to a U.S. Supreme Court ruling in a case known as Hurst v. Florida, was unconstitutional “because it requires that only 10 jurors recommend death as opposed to the constitutionally required unanimous, twelve-member jury.”
Last week’s rulings left unanswered questions about the impact of the court decisions on Florida’s 400 Death Row inmates. The state Supreme Court is expected to address the issue of retroactivity in other cases.
But Friday’s decisions in two seminal cases — the Hurst case, which had bounced back to the Florida court, and another involving convicted murderer Larry Darnell Perry — made clear Florida justices believe a unanimous recommendation is required for the death penalty to be imposed.
Of 31 states that have the death penalty, Florida until Friday was one of just three — along with Alabama and Delaware — that did not require unanimous jury recommendations for sentences of death.
Delaware’s high court put that state’s death penalty on hold following the U.S. Supreme Court’s decision in January in the Hurst case.
There was “no ambiguity” in the Florida Supreme Court’s ruling regarding the jury recommendation, Negron, a lawyer, said.
“There’s no gray area. There’s no confusion. It’s very clear. I think we should pass a constitutional statute,” he said.
Florida’s death penalty has essentially been on hold since January’s 8-1 U.S. Supreme Court decision, which found that the state’s system was an unconstitutional violation of the Sixth Amendment right to trial by jury.
That decision said Florida’s system gave too much power to judges, instead of juries, in sentencing people to death.
The rulings Friday by the Florida Supreme Court dealt with an issue that the U.S. Supreme Court did not directly address — the issue of jury unanimity in sentencing recommendations.
Negron said lawmakers do not need to rush to deal with the matter during a special session but could resolve it during the 2017 regular legislative session that begins in March.
But some lawyers were hoping that the Legislature would address the issue earlier.
In Ocala on Monday, Circuit Judge Robert Hodges put on hold the penalty portion of a murder trial, saying the court needed direction from the Legislature before proceeding.
“The effect of Perry is we have a bunch of cases that are now in limbo,” said 5th Judicial Circuit Public Defender Mike Graves, whose office represents Kelvin Lee Coleman and who argued Coleman’s case Monday.
A jury late last week found Coleman guilty of two counts of first-degree murder.
The ruling also led to a delay of the Jacksonville murder trial of Donald Smith, charged with killing 8-year-old Cherish Perrywinkle in 2013.
Attorney General Pam Bondi is expected to ask the Florida Supreme Court for a rehearing in either the Perry or Hurst cases.
But court observers say it is highly unlikely the justices will grant a rare rehearing, especially given the 5-2 rulings in both cases.
If the court does not act, the Legislature must, lawyers on both sides agree.
“Somebody’s going to have to do something,” said Brad King, state attorney in the 5th Judicial Circuit.
Some judges are holding off on the sentencing phases of capital trials while proceeding with the portions of the trials to determine guilt or innocence.
But Friday’s ruling on unanimity changes the landscape regarding jury selection because defense lawyers will now have to convince only a single juror to grant what is known as “mercy,” a shift that could have a significant impact.
Defense lawyers want the courts to pause until the unanimity issue is settled.
“While we don’t know the final outcome of what the rules or laws will be, how are we expected to question a jury about it?” Graves, the public defender, said.
The issue of unanimity was a flashpoint during this year’s legislative session as lawmakers grappled with changing the sentencing scheme after the U.S. Supreme Court decision.
The Senate originally supported a proposal requiring unanimous recommendations for death to be imposed, but ceded to a House plan — pushed by prosecutors, including Bondi — favoring the 10-2 recommendations.
“Do we understand that we’re responsible for that? Yes. We understand that. We understood that when we made that decision,” said prosecutor King, whose circuit includes Citrus, Hernando, Marion, Lake and Sumter counties.
“But we thought that it was a position we should take in order to represent the victims’ families and try to do the best we could for that group of people. Yes. We’re responsible for that. As much as anybody else is, it was us,” he said.