Defense lawyers are attacking a new law aimed at fixing Florida's death penalty sentencing structure, which was struck down by the U.S. Supreme Court earlier this year because it gave too much power to judges instead of juries.
But the angst over the new law, crafted by the Legislature and signed by Gov. Rick Scott in March, isn't limited to defense lawyers --- the Florida Supreme Court is questioning whether the law violates the state's constitutional guarantee to trial by jury.
Also, a Miami judge ruled last week that the law, which requires a 10-2 jury recommendation for the death penalty to be imposed, is unconstitutional.
Defense lawyers, meanwhile, are now objecting to proposed jury instructions related to the new law.
The proposed jury instructions, crafted by the Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases, lay out what judges must tell juries in capital death cases. The committee will consider changes at its next meeting in June, before sending the proposed rule to the Supreme Court, which could adopt the proposal or revise it.
Lawmakers hurriedly crafted the new death-penalty sentencing law in response to a U.S. Supreme Court ruling in January that Florida's system of allowing judges --- and not juries --- to decide whether defendants should face death is an unconstitutional violation of the Sixth Amendment right to a trial by jury.
The 8-1 decision, in a case known as Hurst v. Florida, dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it focused on 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 determinations of such aggravating circumstances must be made by juries, not judges.
Under Florida's new law, juries will have to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, and it did away with a feature of the old law that had allowed judges to override juries' recommendations of life in prison instead of death.
Creating jury instructions for the new law "is especially difficult in this instance because there remains great uncertainty as to the constitutionality of the statutory law underlying the proposed instructions," Capital Collateral Regional Counsel-South Neal Dupree, whose office represents defendants who have been sentenced to death, wrote in comments submitted to the committee Monday.
Under the proposal, juries would be told that "different factors or circumstances may be given different weight or values by different jurors.” That instruction would not comply with a U.S. Supreme Court decision, in a case known as Caldwell v. Mississippi, making it unconstitutional to instruct a jury in a way that will cause the jury to "minimize the importance of its role," Dupree wrote.
"A juror may unconstitutionally place responsibility for a defendant's punishment elsewhere --- on the other jurors --- if they have the impression that their own sentencing calculus is so unimportant that no other juror need agree with or even know of it. Further, this instruction leads jurors to believe that the critical fact findings necessary to impose death are not critical enough to require agreement or unanimity of any kind," he wrote.
The instructions regarding "mitigating circumstances" for juries to consider when determining whether they outweigh aggravating factors also needs to be changed, according to Dupree and the Florida Public Defender Association, which filed comments Monday.
The proposed instructions seem to focus more on aggravating factors than mitigating circumstances and seem to "dismiss the significance of mitigation and the substantial role it plays in a jury's deliberation," Dupree wrote.
The proposal also includes language not included in the new law, or established by case law, regarding mitigation and mitigation burden of proof, the association wrote.
"We wanted the jury to be clear that there is a distinction between mitigating circumstances, which do not require unanimity and do not require a finding beyond a reasonable doubt, and the aggravating factors, which are required to be found unanimously and beyond a reasonable doubt," Pete Mills, an assistant public defender in the 10th Judicial Circuit who is chairman of the association's death penalty steering committee, said in a telephone interview Tuesday.
The proposal to instruct a jury that its finding of one aggravator renders a defendant eligible for the death penalty is also problematic, Dupree wrote. The finding of an aggravator is followed by "crucial fact findings as to sufficiency and weighings," he wrote.
The proposed instructions provide that, once a defendant is determined to be death-eligible, "you must still make a decision regarding whether the appropriate sentence to be imposed is life imprisonment without the possibility of parole or death."
"But instructing jurors that the finding of at least one aggravator creates death-eligibility and must be unanimous, while the sufficiency and weighing questions are merely to be 'weighed' somehow and can be reached based on various contradictory assessments of the evidence and factors by different jurors, sends a strong message to the jury that the finding of one aggravator is the critical, important point in the process, and what comes next is less crucial or mere formality," Dupree wrote.
Getting the rule right is critical to ensure that justice is meted out fairly, Mills said.
The Supreme Court, which put on hold indefinitely two executions after the Hurst decision, is also grappling with whether judges should use the new law to resentence Death Row inmates, whose lawyers argue that the sentences should be reduced to life in prison without parole because the prisoners were condemned under an unconstitutional system.
Also, the court recently raised questions about the new law's lack of unanimity in jury recommendations.
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