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June 22, 2011

Federal habeas grant finds Ring problem in Florida death sentence

As reported in this new AP piece, in a habeas ruling from earlier this week, a "federal judge has declared that Florida's method of imposing the death penalty is unconstitutional because jurors are not required to make specific findings on the aggravating factors that increase a sentence from life in prison to death."  Here is more:

The ruling by U.S. District Judge Jose E. Martinez applies only to the case of a convicted murderer currently on Florida's Death Row, but legal experts say it will likely spark a series of challenges across the state in death cases.  They also say it could be used to seek stays of execution. "It could have a dramatic impact, a life or death impact," said Kendall Coffey, a former federal prosecutor now in private practice.  "It says that essential elements in criminal cases have to be found by a jury, not by a judge."

In Florida death penalty cases, jurors who voted to convict a defendant of murder are then asked whether to recommend death or life as punishment. The judge then gives "great weight" to the recommendation but is not required to follow it. The recommendation is by majority vote. But jurors are not asked to make specific decisions on aggravating factors necessary to impose death, such as whether it was a crime for money or was particularly heinous and cruel. Those particular rulings are left to the judge.

In his 94-page ruling Monday, Martinez said Florida's system violates a 2002 U.S. Supreme Court decision that voided Arizona's method of imposing death sentences.  That ruling, Martinez said, makes clear that jurors must determine which specific aggravating factors apply in each case. "The defendant has no way of knowing whether or not the jury found the same aggravating factors as the judge," Martinez wrote.  "Indeed, the judge, unaware of the aggravating factor or factors found by the jury, may find an aggravating circumstance that was not found by the jury."

Florida is the only state with this exact system, although many others have hybrids that involve both jury and judge.  Martinez said the Florida Supreme Court has not found that the state's method of imposing capital punishment violates the Constitution, even in light of the 2002 U.S. Supreme Court decision....

The ruling does not automatically void Florida law, but other judges could follow it if lawyers challenge the system around the state. There could also be attempts to modify jury instructions to comply with the decision. In addition, if the state appeals as is likely, a decision upholding Martinez's ruling by the 11th U.S. Circuit Court of Appeals would have the effect of striking down Florida's sentencing system in death cases, Coffey said.  The office of Attorney General Pam Bondi did not immediately comment on whether it would appeal.

A helpful reader forwarded me a copy of the lengthy habeas ruling in Evans v. McNeil, No. 2:08-cv-14402-JEM (S.D. Fla. June 20, 2011), which I have made available for downloading below. The Ring-related discussion begins on page 78 of the pdf, and the facts of the case and the reasoning of this opinion includes some nuances that may preclude every Florida capital defendant from benefiting from the ruling.  Nevertheless, almost a decade after the US Supreme Court's Ring ruling, it now appears that at least some Florida capital sentences are finally running into some Sixth Amendment difficulties.

Download Evans habeas grant

June 22, 2011 at 04:37 PM | Permalink


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So far I can't find any 11th Circuit cases that considered Ring issues except Turner vs. Crosby from 2003. Most of it was retroactivity. All the cases I have seen so far don't mention Ring and have Certificates of Appeal on other issues mostly ineffective counsel.

Posted by: DaveP | Jun 22, 2011 6:24:06 PM

In my opinion, Florida's procedure is so clearly a violation of the Sixth Amendment, it is not even close. And, if reviewed by the Supreme Court, even Scalia or Thomas would be comfortable writing the unanimous opinion striking down Florida's statute. What it appears the Florida scheme does not get is, as Scalia said in Ring, Apprendi is not about sentencing, it is about who convicts people of crimes, which of course is the jury.

For any Florida defense attorneys on board, I suggest you to check out what happened to Recuenco v Washington when it was reversed in DC and sent back to the state court. Recuenco, after losing in the Supreme Court, won in state court on a jurisdictional ground because he wasn't charged with the crime he was convicted of. A violation, in my opinion, of cole v arkansas. The bigger issue that I see coming out of all this in Florida is a plethora of jurisdictional challenges, which cannot be waived and can be raised any time. In other words, not only did a judge, not a jury, convict a def of capital murder, the judge convicted the def of a crime he wasn't charged with.



Posted by: bruce cunningham | Jun 22, 2011 8:02:30 PM


why after almost 10 years has a single federal district judge found Ring applicable to Florida? As I posted above, I cannot find any case where the 11th Circuit considered Ring except Turner. I know it was raised repeatedly at the FSC and denied citing Bottoson. There are about 45 inmates in Florida according to some sources who have exhausted federal appeals at the 11th. Maybe most of them didn't raise it?

Also, while Ring was being briefed and argued, SCOTUS stayed Bottoson and King pending decision. Later after Ring was decided, they didn't vacate and remand.
They denied cert without comment and both were executed. There has never been a single federal judge to my knowledge to hold Ring applicable until this recent case. No SCOTUS justice has either, even in a denial of certiorari where Ring was raised.

Posted by: DaveP | Jun 22, 2011 8:40:01 PM

Dave, I think that the reason that the limits of Apprendi/Ring/Blakely/Cunningham have not been tested is because most lawyers believe that the Sixth Amendment line of cases is about aggravated sentences not aggravated crimes. I agree with Scalia's statement in Ring that "today's judgment has nothing to do with jury sentencing." Under Florida's system, as I understand it, an aggravator is used as sentence enhancer rather than an element of a crime greater than what in Sattazahn Scalia called "murder simpliciter."

In order to focus the discussion I am happy to have with you, what is your view of Apprendi and Ring? I believe that they prohibit a bench trial for a greater offense following a jury trial for a lesser offense. What is your view of the meaning of Apprendi and Ring?


Posted by: bruce cunningham | Jun 22, 2011 9:07:31 PM


send me your email again. We conversed about the Georgia mental retardation case last year.

I will contact you by email tomorrow to discuss Ring etc. In the meantime, could you opine to my questions above?


Posted by: DaveP | Jun 22, 2011 9:18:36 PM

Bruce, I agree with you, I think. As I see it, Ring is not about whether a jury does the sentencing, it is about whether a jury finds all of the facts necessary to enhance a punishment. Is that what you are saying?

A lot of people get distracted by the "jury only recommends" part of the Florida law, but I don't see a problem with that.

The problem, as I see it, with Florida's scheme is that the jury need not agree on which aggravator is present in a given crime. Conceivably, each of the jurors could find a different aggravator, and no single aggravator need be found by even a majority of the jurors. And yet, without a majority of jurors finding any one aggravator, a judge is permitted to hand down a death sentence. I don't understand how that can be. Is that the problem that you see, Bruce? If not, what is?


Posted by: dm | Jun 22, 2011 11:17:00 PM


I hate to admit it, but I see your point. Another thing that is curious is that SCOTUS hasn't taken up a Ring case since Summerlin. I am sure all the direct appeals from death sentenced inmates to the Florida Supreme Court went there for certiorari. I have read numerous FSC opinions and it was raised and denied in quick fashion citing Bottoson. Why didn't SCOTUS grant any of these over the last 9 years if this problem is such a slam dunk as Bruce posted?

Also, what would this do to Proffitt, Spaziano, and Hildwin?

Posted by: DaveP | Jun 23, 2011 8:48:31 AM

If the specific jury findings aren't necessary to the death sentence, then there shouldn't be a Ring problem.

While I completely agree with Apprendi, I am dubious about Ring. First, the Court should have followed stare decisis given the obvious reliance here. Second, the states' regimes were put in place in response to the Supreme Court's death penalty "jurisprudence". And I don't think that there's a problem with a judge performing the separation of those who deserve death and those who do not. That's not going to be a strictly elements based decision anyway.

Posted by: federalist | Jun 23, 2011 9:25:41 AM

dm, yes, I agree with you that "Ring is not about whether the jury does the sentencing." Breyer thought Apprendi bestow a sentencing role on juries and that is what triggered Scalia saying "UNFORTUNATELY, (for justice breyer) today's judgment has nothing to do with jury sentencing." Then to cement the point, Scalia says,, "Those states that leave the ultimate decision of life or death to a judge, may continue to do so., after a jury at phase two finds the existence of an aggravating factor, or during phase one, (where it more logically belongs anyway)" Or words close to that. I'm working from memory.

Having made a correct statement in your first sentence, however, in my opinion,, you lapse back into the misconception that Ring is about sentencing with your second statement. "It is about a jury finding all the facts necessary to enhance a punishment." CLOSE BUT NOT QUITE. I believe the proper way to articulate the role of the jury is to say that a jury must find all facts necessary to EXPOSE A DEF TO PUNISHMENT IN EXCESS OF THE BLAKELY MAXIMUM. There is a big difference, in my opinion, and one which I hope will make this conceptually clear to you, in talking about the 'actual punishment received" and the "potential punishment to which the def is exposed" The first relates to sentencing the second relates to what crime someone is convicted of. Suppose a person is tried for Common Law Robbery, which in NC is a lesser offense than Armed Robbery because the use of a gun is not necessary. The max sentence for common law, let's say, is up to five years and the max sentence for Armed Robbery is up to ten years. Suppose the jury convicts the def of Common Law Robbery. The judge then says, "I believe the def used a gun, so madam clerk please reflect on the record that I find the def guilty of Armed Robbery." But, the judge sentences the def to four years in prison. The actual sentence the def received wasn't increased above the Blakely max, but I still think there is Apprendi error because, due to the fact found by the judge, the def was EXPOSED to ten years.

I don't agree with you that the problem with the florida system is a potential lack of unanimity, because a def has no federal constitutional right to a unanimous jury (Apodaca). The problem is that we don't know what crime the defendant has been convicted of? Was it Capital Murder of a Policeman? Is it Capital Murder for Hire? Is it Capital Murder which was Especially Heinous? Cole v Arkansas says it violates due process to punish someone for a crime he wasn't convicted of. You come close when you say we don't know how many jurors believed which ags exist, but I don't think it is splitting hairs to say the issue is not unanimity, it is that different jurors were considering different crimes.

there is an instructive case out of Arizona, state v martinez, which holds correctly that once a jury finds one ag, the judge can find others. Martinez is correct because it only takes one ag to increase the POTENTIAL punishment from life to death. The finding of a second ag does not increase punishment again above death, so it can be found by a judge.

Are you with me yet? You are close but not quite. Florida's system is simply bizarre.


Posted by: bruce cunningham | Jun 23, 2011 9:51:36 AM

federalist, you are also close but not quite. I agree with you, as expressed above, that there is no problem with a judge deciding who gets death and who doesn't, AFTER A JURY HAS CONVICTED THE DEF OF A CRIME WHICH MAKES THE DEF ELIGIBLE FOR DEATH.

I also note that your post begins with an articulation of the same struggle that Scalia articulated at the beginning of his concurrence in Ring. But if one is "on the plane to Apprendiland" , as Scalia says, it doesn't make any difference if death is the possible punishment or life without parole is the possible punishment.


Posted by: bruce cunningham | Jun 23, 2011 9:57:11 AM

DaveP , my email address is btcunningham@earthlink.net.

To respond to your question about why so many judges have not found fault with florida's system before now, I would offer three responses.

First, judges are not supposed to give advisory opinions, or engage in general discussions of what the law is beyond the context of the facts presented in the case before it.

Second, all the justices on the supreme court, and I suspect most judges on the eleventh circuit do not come from the background of being criminal defense lawyers, and therefore don't have a practical familiarity with the ramifications of a holding that, in my opinion, says there are no longer aggravated sentences, there are only aggravated crimes. Issues that we trial lawyers think about, such as discovery, indictments, double jeopardy, vagueness, etc, are not bright on most appellate judges' radar screens.

third, change is hard, I don't care what kind of change it is. People do not like to believe that what they learned in law school was not only incorrect, it was unconstitutional. North Carolina's structured sentencing system was lauded as a national model when it was enacted in 1994. As we know now, there was a problem with it, it was unconstitutional. Rather than scuttling the whole thing, as should have been done, our judges have tried to force square pegs into round holes and our sentencing, like florida's, is now not only unconstitutional, it is irrational.

I look forward to continuing our discussion. My hunch is that if you will keep at it long enough there will be a moment of epiphany in which it all becomes very simple, actually much simpler and more coherent than the tortured response of most appellate courts to apprendi. As Thomas said in his concurring opinion, "Today's decision is about, simply put, what is a crime." If Thomas can change his ways, and publicly admit his error of thinking, so can others.

I hope I am not coming across as arrogant as I suspect it sounds, but if you can persuade me I'm wrong, I'll say so. I don't think you can, however.


Posted by: bruce cunningham | Jun 23, 2011 10:13:58 AM

The more I look at the Florida statute and the Florida jury instructions for the penalty phase the more screwed up the Florida process looks.

After a defendant is found guilty of capital murder, they then have a sentencing phase before the jury. But then regardless of what the jury recommends they have another sentencing phase before the judge, where more evidence can be presented. So the State could present no evidence of an aggravator to the jury, watch the defendant's mitigation case and then put on all its aggravation case at the second, real sentencing hearing before the judge. The State could present legally insufficient evidence of any aggravator to the jury and still get a death sentence. This is even worse than dm's interpretation.

The very first sentence of the jury instructions (page 82 of the habeas order) tells the jury that if the find the aggravators do not justify death then they "should" recommend life. The instructions do not say "must", but "should." So a jury could read those instructions and conclude they can recommend death even without finding an aggravator.

Footnote 28 of the order, page 84, says that under Florida's scheme "if six or more jurors determine the defendant should be sentenced to death the jury may recommend a death sentence." I have no idea whether this means that a jury can vote death if only six jurors vote death. If this statute were less of a mess I would assume this is meant to cover what happens if less than 12 people are left on the jury, but Florida's process is such a mess I can't assume that. So it may be possible for a jury to be presented with no evidence of an aggravator, have only 50% of the jury vote for death and still recommend a death sentence.

I have no idea how I would defend this statute if I worked for the Florida AG. I suppose I might argue that under Florida law everyone convicted of capital murder is eligible for the death penalty, regardless of whether an aggravator is found, so once the jury convicts of capital murder there is no Ring problem. But the requirement of statutory aggravators is an important part of narrowing and focusing the sentencing body's discretion under Furman, Gregg and Proffitt. That could mean the statute is interpreted in a way to survive under Ring, only to have Proffitt overruled.

Posted by: Paul | Jun 23, 2011 10:16:11 AM

Paul, are you saying there are three phases to a florida capital trial? The first phase at which the jury finds the def guilty of murder simpliciter plus one aggravating factor which makes the def eligible for death? then a second phase where evidence is presented to a jury and the jury makes a sentencing recommendation? and then a third phase where the judge decides whether to override the jury's recommendation?

My question basically is whether or not a florida defendant becomes eligible for death after phase one? If so, I'll have to ponder this some more.


Posted by: bruce cunningham | Jun 23, 2011 11:20:49 AM

Paul, a second question. You said that the jury at phase one convicted the def of CAPITAL murder. Does that mean that under florida law, a def becomes ELIGIBLE for death at the end of phase one when he is convicted of capital murder, or must there be additional fact finding which makes a def eligible for death. I'm not talking about a proceeding at which death is SELECTED, but just eligible. There is no sixth amendment right to have a jury select death, only a sixth amendment right to find a def eligible for death.

I'm wondering if florida uses the 'aggravating factor' in a multitude of ways, as both an eligibility fact and a selection fact. Scalia complained about this ambiguity in Brown.


Posted by: bruce cunningham | Jun 23, 2011 11:44:34 AM

Everyone want to get more confused? Watch this.

Florida Supreme Court website/
Oral arguments/Transcripts of previous oral arguments/
August 2002: Bottoson vs. Moore

It is about 45 minutes long. Enjoy

Posted by: DaveP | Jun 23, 2011 5:46:51 PM

Bruce, I am saying that there are three phases to a death penalty trial in Florida, although for constitutional purposes the jury sentence selection phase is irrelevant. First, the trial (or the guilt/innocence phase) where the jury decides whether the defendant is guilty or not guilty of Florida First Degree Murder; two, a sentence advisory phase where the jury gives the judge a recommendation of what sentence the judge should select; and finally a sentence selection phase where the judge selects a sentence of either death or 25 to life. The second phase does nothing that affects the Ring analysis; for constitutional analysis it is irrelevant.

In a more sane state with a more sensible death penalty statute there would be a crime of Capital Murder, First Degree Murder or Aggravated Murder which could be punishable by death depending on the aggravators and mitigators. If the jury finds the defendant guilty of that most serious form of murder, then most states require the jury to weigh the aggravators and the mitigators, but require the jury find at least one aggravator to sentence someone to death. Because finding at least one aggravator is required before the defendant can be sentenced to death, it is an Apprendi enhancer and must be found by a jury beyond a reasonable doubt.

So a rational state that tried to follow the spirit of Ring would have three phases of a death penalty trial: 1) the guilt/innocence phase, where the jury decides if the defendant is guilty of First Degree Murder; 2) if guilty, an eligibility phase where the jury must find one statutory aggravator beyond a reasonable doubt to make the defendant eligible for the death penalty; and 3) a sentence selection phase where someone (either the jury or the judge, as Ring doesn't require this be done by the jury) decides whether to sentence the defendant to death or whatever non-death alternative the state's law allows. Most states meld together phase 2 and phase 3, to the great frustration of you and Justice Scalia. I am pretty sure this is what you have been saying, so we probably agree on the law.

Florida is not a sane state. Florida statute 775.082(1) says a person convicted of a capital felony will be given 25 to life unless the procedures in 921.141 result in the court finding the defendant shall be punished by death. 921.141(3) describes the sentence selection phase before the judge, and says that after weighing the aggravators and the mitigators the court shall sentence to either life imprisonment or death. If the court sentences the defendant to death the court shall set forth it writing that a) sufficient statutory aggravators exist; and b) that the mitigators do not outweigh the aggravators.

I am not sure if this requires the judge to find an aggravator before sentencing a defendant to death. The statute requires the judge to write down his reasons, but is not as explicit as it should be that the judge must find an aggravator. However I do not know how a judge can follow the statute and set forth in writing that sufficient aggravators exist without actually finding sufficient aggravators exist, and if the judge must find at least one then it becomes an eligibility requirement.

To give a hypothetical, suppose a Florida defendant pleads guilty to a capital murder indictment that does not allege any statutory aggravators. Now suppose the defendant successfully waives any offer of proof, and then both the prosecution and the defense refuse to put on any evidence at the sentence selection phase. The only evidence before the judge is what is alleged in the indictment. Can the judge legally sentence the defendant to death? If the answer is yes, then Florida has no eligibility factors and there is no Ring problem. I don't think this is a correct reading of the statute, but it may be plausible.

However a sentencing scheme that allows a death sentence in my hypothetical seems horribly wrong because it is a pre-Furman method of sentencing someone to death. Proffitt certainly assumed that the Florida process of weighing aggravators and mitigators would actually narrow the class of people who commit First Degree Murder to a narrow subset that includes only those who truly deserve death. If my interpretation is correct then Proffitt was wrongly decided.

Posted by: Paul | Jun 23, 2011 6:00:38 PM

Hey Bruce, thanks for your explanation. I think I get it now. To my mind, what you say is clearest when you say it this way:

"There is a big difference, in my opinion, and one which I hope will make this conceptually clear to you, in talking about the 'actual punishment received" and the "potential punishment to which the def is exposed"

This is surely correct. The latter is what Ring cares about. The former is irrelevant for Ring purposes.

Regarding my point about jurors choosing different aggravators: I think you misunderstand me. I'm not suggesting that RIng requires that jurors find any particular aggravator with unanimity – as you say, there's other case law that says juror unanimity is not necessary. But I do think at least a majority of jurors must all agree on a single aggravator. To put it in your language, if they don't they aren't finding the D guilty of the same offense.

Posted by: dm | Jun 24, 2011 8:42:22 AM

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