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January 19, 2016

Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida

In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.

Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:

As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in.  Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.  

Prior related posts:

January 19, 2016 at 12:53 PM | Permalink


SCOTUS has been puzzled most of all on how to handle post Ring cases for 13 years now.

Posted by: DaveP | Jan 19, 2016 5:22:50 PM

A healthy share of the blame goes to the Florida Supreme Court. After Ring undermined the FL system that court repeatedly refused to examine the issue again. Instead, it just cited its pre-Ring cases and said any change had to come from SCOTUS. So it was proceeding at its own severe risk, and should hold itself largely responsible for the cases that accumulated in the meantime. -EMF

Posted by: Eric M. Freedman | Jan 19, 2016 6:04:00 PM

I agree with that. But it seems like SCOTUS should have selected a case later that term or the next. Only one judge ever ruled the Florida procedure unconstitutional in Evans v Secretary.
The 11th Circuit reversed him and cert was denied without comment. Then, right away the next term cert was granted on Hurst from direct review.

Posted by: DaveP | Jan 19, 2016 7:09:57 PM

Agreed Eric, the way the Court granted cert in Hurst and the brevity of the opinion overruling Spaziano indicated a bit of irritation, in my opinion.

The Hurst cert petition put forth a series of issues related to mental retardation procedure and unanimity of the jury on aggravating factors. The Court granted cert and then rewrote the question presented itself. The issue was broadly worded "Whether Florida's death penalty system violates the Sixth and Eighth Amendment, as described in Ring v Arizona?" Or very close to that.

Then the vote was 7 to 1 to 1. Kennedy, who dissented in Apprendi, joined Sotomayor's majority opinion without comment.

I think Floridian hubris came home to roost in Hurst. As Doug pointed out even Kent at Crime and Consequences called them foolish.


Posted by: bruce cunningham | Jan 19, 2016 7:14:43 PM

I still don't understand why a defendant whose jury voted for death -- with no judicial override -- is entitled to any relief. Just because the sentencing scheme is unconstitutional as applied to OTHER defendants doesn't entitle to a remedy those to whom it was applied constitutionally. Following Ring, for example, every death-row prisoner in Arizona had a viable Sixth Amendment claim if the jury did not make the required findings. That's not he case here.

Posted by: Da Man | Jan 20, 2016 2:14:02 PM

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