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January 14, 2016

Florida Supreme Court wasting no time trying to figure impact of Hurst

This new article by Chris Geidner for BuzzFeed News reports that the top court in the Sunshine State is asking lawyers to sort out ASAP the dark death penalty clouds that the Supreme Court created with its ruling earlier this week in Hurst finding unconstitutional the process Florida uses for imposing death sentences.  The article is headlined "Florida Supreme Court Orders State To Address Death Sentencing Ruling’s Effect By Friday," and here are excerpts:

The Florida Supreme Court on Wednesday ordered state officials there to address questions by Friday about the effect of the U.S. Supreme Court’s decision striking down the state’s death sentencing law on a man due to be executed in less than a month. The brief order from the Florida high court came in the case of Cary Michael Lambrix, who currently is scheduled to be executed on Feb. 11. On Jan. 11, his lawyers had filed a petition for relief based on a similar argument to that made by Timothy Hurst at the U.S. Supreme Court.

After the U.S. Supreme Court ruled on Jan. 12 in Hurst’s case that Florida’s death sentencing law was unconstitutional under the Sixth Amendment because it violated the right to a jury by making the imposition of a death sentence the responsibility of a judge and not a jury, the Florida Supreme Court amended its order in Lambrix’s case. Lambrix was convicted and sentenced to death in 1984 for the murders of Clarence Moore and Aleisha Bryant....

Specifically, the state is ordered to address whether the U.S. Supreme Court’s decision should apply retroactively to past death sentences in Florida, how Hurst applies given the specific facts of Lambrix’s sentencing, and whether any error in Lambrix’s case should be viewed as harmless.

January 14, 2016 at 09:54 AM | Permalink


I assume that defendants whose juries voted for death (with no judicial override involved) have no basis to demand a remedy. The sentencings scheme was constitutionally applies AS TO THEM, so only defendants whose juries voted for life, but who then had the judge impose the death sentence, should benefit from the SCOTUS ruling. Anything else would be a windfall.

Posted by: Da Man | Jan 14, 2016 10:08:09 AM

Is that true even if the jury was not unanimous?

Posted by: Don't Ask | Jan 14, 2016 11:16:35 AM

Can you clarify why you think that would matter, Don't Ask?

Posted by: Joe | Jan 14, 2016 11:41:48 AM

Why in the world would SCOFLA rip open settled judgments? Certainly, justice should be done in 30 year old cases. Lambrix should be executed on time--anything else would be an absolute travesty.

The uncertainty here points up why the Florida legislature was wise not to tinker with the Florida death law--had the law been changed earlier, it's possible that a lot of executed killers would have gotten off.

Posted by: federalist | Jan 14, 2016 12:23:08 PM

what a complicated question!!

Yes, I believe it matters if the jury verdict was unanimous, --maybe. There is no federal constitutional right to a unanimous jury verdict. Apodaca. But, Florida may have a statute or constitutional provision that a verdict must be unanimous. However, there is a federal right to "functional unanimity"

The second slippery question is whether Florida requires a Grand Jury indictment charging someone with a specific crime before he can be tried. Again, no federal right to a grand jury indictment, but possibly a state right. Hurtado v California Arkansas v Cole says a person can't be convicted or sentenced for a crime he wasn't charged with. I think if there was an indictment requirement and there was not a single offense characteristic ag in the indictment, the trial court had no jurisdiction to try the def for aggravated first degree murder, when he was charged with only simple first degree murder. Arkansas v Cole says a person can't be tried for something that he hasn't been charged with.

But, was direct review concluded before Ring was decided? Or Apprendi? Or Blakely? Retroactivity is an elusive area. I believe that Hurst is nothing but an undeniable consequence of Ring, and therefore Hurst is nothing new. The Florida Supreme Court was just stubbornly avoiding dealing with the fact that Apprendi/Ring existed. Spaziano was before Ring.

It also matters, in my opinion, whether the ag/element was an offender characteristic or an offense characteristic.

This question is very complex.

Contrary opinions and comments welcomed.


Posted by: bruce cunningham | Jan 14, 2016 1:23:09 PM

It was my understanding that a Judge decided the sentence not the jury. We have trial by jury if we ask for it.

Posted by: Beldar From Remulak | Jan 14, 2016 2:06:56 PM

How many states now require a grand jury in a capital case?

The plurality in McDonald v. Chicago to me was a bit suspicious of the two tiered approach in place for criminal juries but seem to be okay with it for now. Appreciate BC's comments on the nuances here and in a previous thread.

Posted by: Joe | Jan 14, 2016 2:20:33 PM

Joe, thanks. In my view a lot of states, including N.C., simply did not want to acknowledge that Apprendi/Blakely turned the clock back on who convicts citizens of crimes to the time of the founding and back then juries were required.

Then, the question became "what is a crime?" All this got complicated and then incomprehensible. For example, Is common law with an "aggravating factor" of "the defendant used a gun at the time of the offense" the same crime as Armed Robbery?


Posted by: bruce cunningham | Jan 14, 2016 2:38:50 PM

oops "common law ROBBERY" versus Armed Robbery. Common law robbery is a lesser crime than armed robbery because it doesn't require a gun. But what if the legislature makes using a gun in any offense an "aggravating factor?"

Posted by: bruce cunningham | Jan 14, 2016 2:40:46 PM

I had not had much familiarity with Florida's death penalty statute before Hurst, but it is a constitutional trainwreck. I think it is totally unrealistic for the Florida Supreme Court to enter an Order requiring the State and defense in the Lambrix case referenced in the article, to digest Hurst in a week and articulate how Hurst impacts Florida's death penalty jurisprudence and the upcoming execution of Lambrix.

The Florida Supreme Court should have bitten the bullet and long ago acknowledged their procedure was unconstitutional.

Following a quick read of the Lambrix habeas petition attached to the article, I would make a suggestion of how I think the petition could be stronger and more consistent with the position of the seven person majority in Hurst.

In discussing the comments during oral argument about Caldwell v Mississippi's prohibition against arguments by the state which diminish the responsibility of the jury, the Lambrix habeas petition makes, in my opinion, a common mistake. It repeatedly refers to the jury's role in SENTENCING being diminished.

However, I believe it is clear that Ring bestowed no role whatsoever on the jury with respect to sentencing.

Again, read Scalia's concurring opinion in Ring. During his reprimand of Breyer for thinking that the Sixth Amendment provides a role for the jury to play in determining sentence, he says "Unfortunately, today's judgment has nothing to do with jury sentencing." He goes on to say that once the jury makes a finding of the existence of a single aggravator which convicts the def of capital murder, a state is free to leave the "ultimate decision of life or death" to the judge.

North Carolina requires that the jury determine whether a death sentence is imposed or not. But that role is statutory, not constitutional.

Therefore, I think that Scalia and Sotomayor were expressing concerns about Florida's crazy statute diminishing the responsibility of the juror's constitutional role in convicting someone of capital murder or not, rather than their statutory role. By statute, the jury admittedly has a limited role in deciding whether to impose death.

I just wish people would stop referring to the jury having a constitutional role to play in sentencing, as opposed to convicting defendants of a crime known as capital murder.

All this makes one's head hurt.

Posted by: bruce cunningham | Jan 15, 2016 12:40:01 AM

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