Martin Dyckman: Why Florida’s death-sentencing law is likely in trouble

It can be perilous to predict the outcome of a U.S. Supreme Court case by the questions justices ask during the oral argument, but this once I’ll hazard a guess: Florida’s death-sentencing law is in deep trouble.

The better question, in fact, is not whether Pensacola killer Timothy Hurst will win his appeal but how many more death row inmates might be spared on his account.

Unlike any other state, Florida requires neither a unanimous jury recommendation for death nor any declaration by the jurors as to the aggravating factors that the law specifies to justify the ultimate penalty. Those decisions are left to the trial judge, who assumes why the jury voted as it did.

This appears to conflict with the 2002 U.S. Supreme Court opinion in Ring v. Arizona, which held 7-2 that only the jury, not the judge, can find such aggravating circumstances.  To rule otherwise, Justice Ruth Bader Ginsburg wrote, would leave the Sixth Amendment’s right to a jury trial “senselessly diminished.”

It wasn’t only the liberal justices who posed questions helpful to Hurst’s case when it was argued Tuesday. Justice Antonin Scalia, who concurred in Ring, expressed concern that the merely advisory role of Florida jurors may cause them to take their responsibility less seriously than they should.

Six other states amended their laws to conform to Ring, but Florida’s Legislature blissfully ignored it.

The state Supreme Court, meanwhile, has consistently held that Ring doesn’t matter in Florida. In 2005 it overruled a decision by Pinellas-Pasco Circuit Judge Lynn Tepper to require the jury to indicate on a special verdict form which aggravating factors it would find and by what votes.

“Specific jury findings on aggravators without guidance about their effect on the imposition of a sentence could unduly influence the trial judge’s own determination of how to sentence the defendant,” said the Florida court’s majority opinion. “The trial court alone must make detailed findings about the existence and weight of aggravating circumstances.”

When that was read to the U.S. Supreme Court Tuesday, Justice Anthony Kennedy — often the swing vote in major cases — sounded shocked as much by the timing as the language,.

“Is that a – post Ring?” he asked. “What’s the date of that?”

“Yes, this is post Ring,” said Seth Waxman, a former U.S. solicitor general who is Hurst’s lead attorney.

That’s a pregnant point; it would invite the high court to apply a decision in Hurst’s favor to everyone sent to death row since Ring was handed down 13 years ago. As no other state would be affected, it would be a relatively easy call.

Although the court refused to extend Ring to inmates who had exhausted their direct appeals, some states did so on their own.

Florida, on the other hand, has continued to hand down sentences as if Ring had never happened. Of the 394 people on death row, 143 were sent there after 2002.

Hurst was convicted of the 1998 murder of Cynthia Lee Harrison, a coworker at a Popeye’s restaurant and the Florida Supreme Court narrowly upheld his sentence, 4-3.  Only seven of the 12 jurors had voted to recommend a death sentence. The trial judge then concluded that there were two aggravating circumstances — that the crime was heinous, atrocious and cruel, and carried out in the course of a robbery. But the state had not charged Hurst with robbery. Moreover, it was possible that a majority of the jury had voted for neither factor. As few as four could have found one and as few as three the other.

“There is no other state that permits anyone to be sentenced to death other than by a unanimous determination by the jury,” Waxman said Tuesday. “And the State of Florida requires unanimity for shoplifting, just not for death.”

In the 2005 special verdict form opinion, the Florida Supreme Court urged the Legislature to “require some unanimity in the jury’s recommendation…to decide whether it wants Florida to remain the outlier state.”

That case involved Alfredie Steele, charged with the murder of Pasco Sheriff’s Lieutenant Charles “Bo” Harrison.  The prosecution successfully appealed the pretrial order in his favor.

As Steele was subsequently sentenced to life rather than death, he had no grounds for a federal appeal. Dozens of other death-sentenced inmates have appealed on the basis of Ring, but Hurst’s case is the first to be accepted by the U.S. Supreme Court.

The shakiness of Florida’s situation has not gone entirely unnoticed in the Legislature, but as with so many hot-button issues, it’s one that most legislators fear to touch until something forces them to.

Their timidity isn’t unfounded. For co-sponsoring legislation the past two years to require unanimous recommendations and specific findings, state Rep. José Javier Rodriguez, D-Miami, drew an election opponent who accused him of coddling murderers. He won nonetheless, and is sponsoring it again this year with state Rep. Clovis Watson, D-Gainesville. State Sen. Thad Altman, R-Rockledge, has offered it again in the Senate, but it is reportedly dead on arrival with the House leadership.

By next June, when the Supreme Court’s current term ends, Florida more likely than not will find itself without an enforceable death penalty. The politicians who cling to that practice will wish they had listened to the colleagues who have tried to save it.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in Asheville, N.C. Column courtesy of Context Florida.