Florida is one of the only states that doesn’t require unanimous jury vote for death penalty

By Elyssa Cherney

The U.S. Supreme Court will hear arguments today in a Florida case that questions the state’s outlier practice of allowing a divided jury to recommend the death penalty.

The high court is considering a 1998 Pensacola murder case, Timothy Lee Hurst V. State of Florida, where a 19-year-old was convicted of murdering his Popeye’s fried chicken manager and leaving her bound and stabbed body in the restaurant’s freezer.

Florida, with the nation’s second-highest death row population, is one of the only states where a judge can give someone the death penalty even if some jurors disagree, according to case filings and experts. Some state legislators sought to reform that last year but couldn’t get the bill to a vote.

Brianne Gorod, an appellate lawyer with the Constitutional Accountability Center in Washington D.C., said she predicts the court to rule against Florida because the Supreme Court has emphasized the importance of juries. 

“This idea that a simple majority is sufficient to recommend the state’s harshest sanction is really at odds with that,” said Gorod, who worked on a brief in support of Hurst.

As it stands now, jurors individually consider what are known as “aggravating factors” and weigh them against evidence the defense presents about why the defendant’s life should be spared. The judge decides the punishment after getting a recommendation from the jury.

In court filings, Attorneys for Hurst, now 36, posed several questions to the justices, including whether Florida’s death-sentencing procedure violates the Sixth and Eighth Amendments. A separate issue is whether the practice clashes with an earlier Supreme Court case, which held a judge cannot make factual findings about capital crimes.

In response, the state contends there is nothing unconstitutional about Florida’s sentencing procedure because the judge and jury work together in determining the punishment.

“Florida’s system, which divides sentencing responsibility between judge and jury, leaves the ultimate decision with the judge, but still provides for a jury determination of whether there is at least one aggravating circumstance —meaning the jury decides whether there are sufficient facts making the defendant eligible for the death penalty,” according to a brief filed by the attorney general’s office.

Florida also stands out by leading the country with the most death row exonerations — 25 since 1973, according to the Death Penalty Information Center, a Washington D.C.-based nonprofit.

With 395 people on death row, Florida’s population of the condemned is second only to California, which has 746 people awaiting death, according to the group.

It’s too soon to say what impact, if any, the case could have on those awaiting execution in Florida. A ruling in Hurst would apply to future cases and the state would likely have to deal with retroactivity in a separate legal battle, Gorod said.

Also unknown is how the case will affect ongoing death penalty cases in Orange County. A jury in August convicted Bessman Okafor of first-degree murder for a witness execution plot in 2012 and recommended, by a an 11-1 vote, that he should get the death penalty for it. He hasn’t yet been sentenced.

The death-penalty trial for Sanel Saint Simon, the man accused of killing his girlfriend’s teenage daughter, is scheduled for 2016.

Orange-Osceola Chief Judge Frederick Lauten said Monday the circuit must continue conducting its practices as usual while the U.S. Supreme Court case is pending.

“There’s really little else that we can do,” he said. “We can’t change the procedures and we can’t change the law — only the Florida Supreme Court or the U.S. Supreme Court can do that.

“Some judges try to anticipate where the changes are coming … and that’s like reading tea leaves.”

Meanwhile, change could also be stirring in the Legislature.

For the past two years, Sen. Thad Altman, R-Rockledge, and Rep. José Javier Rodríguez, D-Miami, have filed bills to require unanimous jury recommendations for death sentences.

The bill cleared a state Senate committee for the first time last year, but never made it to the floor.

The legislators are trying again for the 2016 session.

Rodriguez said it’s important to work on the bill before the Supreme Court issues its decision so the state isn’t left unprepared if it needs to revamp its procedures.

“However you feel about the death penalty, that would wreak havoc on the criminal justice system in a number of ways,” he said. “We can’t fix all of that havoc, but if we pass this bill, at least going forward we wouldn’t be putting this burden on the victims, the death row inmates, the judges and the state attorneys.”