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The Bar Bulletin
Jax Daily Record Monday, Feb. 26, 201806:40 AM EST

How required unanimity changed the death penalty

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4th Judicial Circuit relies on concise procedure.
by: Max Marbut Associate Editor

In January 2016, a ruling from the U.S. Supreme Court changed a key requirement for a judge in Florida to hand down a death sentence to a person convicted of a capital crime.

The court ruled that Florida’s sentencing procedure was unconstitutional under the 6th Amendment, which guarantees the right to a trial by jury.

Effective after the Hurst v. Florida decision and a similar order by the state Supreme Court in October 2016, juries must be unanimous in recommending the death penalty before a judge can send a convicted defendant to death row.

Before the ruling, only a supermajority vote (at least 10 of 12 jurors) was required for that sentence.

In response to the requirement for a unanimous death recommendation, the 4th Judicial Circuit developed a concise written procedure to determine whether the state attorney will ask for the death penalty or a sentence of life in prison without parole when a defendant is charged with a capital crime.

“Our process is modeled loosely on the way the Department of Justice handles death penalty decisions,” said Mac Heavener, chief assistant state attorney and direct supervisor of the Special Prosecution, Special Assault and Homicide divisions.

The purpose is to assure fair, uniform, efficient and transparent handling of homicide cases and to provide appropriate review of how homicide cases are investigated, charged and prosecuted.

“We have a number of experienced prosecutors reviewing cases and the policy is applied to every murder indictment,” Heavener said.

The assistant state attorneys who comprise the Grand Jury Indictment Review Panel act in a fact-finding role to State Attorney Melissa Nelson, who makes the decision whether to seek the death penalty.

The nine-member panel of division chiefs and assistant state attorneys considers the facts of each case, based on relevant Florida law within a framework of consistent and even-handed application of the law.

Under the policy, arbitrary or legally impermissible factors —including a defendant’s race, gender, ethnicity, sexual orientation or religion — do not play a role in the decision to seek or waive the death penalty.

“The panel provides quality control in terms of the strength of the case. It involves more people in a thoughtful, methodical process,” said Heavener.

“We want to make the right decision, using the right process, for the right reasons.”

Of the 347 people currently on Death Row in Florida, 53 were sentenced in the 4th Circuit: 47 in Duval County, six in Clay County and none in Nassau County.

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