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February 2, 2016

Post-Hurst hydra develops new heads in Delaware as all capital cases get halted

In this post last month 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 courts as judges try to make sense of just what Hurst must mean for past, present and future capital cases.  Now, as reported in this local article, headlined "All Delaware executions, capital murder trials halted," a new head for this litigation hydra emerged yesterday.  Here are the basic details:  

All pending capital murder trials and executions have been halted until the Delaware Supreme Court determines the constitutionality of the state's death penalty law.  The temporary stay, issued by President Judge Jan R. Jurden on Monday, is expected to impact at least four death penalty cases that were scheduled to go to trial in the next 120 days. Likewise, a spokesperson for the Department of Correction said Monday that all executions are also on hold, even though none were scheduled for the coming months.

"I think it is a smart decision," said Delaware's Chief Defender Brendan O'Neill. "It makes sense to stay the cases until we get the Supreme Court's ruling on whether our death penalty statute is constitutional."  The stay will give the Delaware Supreme Court time to consider five questions that have arisen in light of a recent U.S. Supreme Court ruling for Florida.

Last month, the U.S. Supreme Court struck down Florida's death penalty system, saying it gives too much power to judges, instead of juries. In that case, a man was convicted of the 1998 murder of his manager at a Popeye's restaurant in Pensacola and was sentenced to death by a judge.  Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death. Judges in Delaware have not been using that power.

The top U.S. court's recent ruling left prosecutors, defense attorneys and judges in Delaware with many questions about how to proceed in the state's approximately two dozen death penalty cases and with the 14 men on death row. In light of this, Superior Court Judge Paul Wallace solicited questions from Attorney General Matt Denn's office and O'Neill's office that they would like the Delaware Supreme Court to consider.  The highest state court agreed last week to address the questions and set a timeline of mid-April for all briefs to be submitted.

The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer.  Police have said the shooting occurred during a drug deal gone awry....

Jurden wrote in the administrative directive Monday that the certified questions are directly relevant to the pending capital murder trials. "Specifically, the determination will control the procedure to be applied in all such cases," she wrote.  "A temporary stay of the pending trials, penalty hearings, and any applications asking this court to declare Delaware's capital sentencing scheme unconstitutional is warranted to ensure the application of the law consistent with the Supreme Court's determination of the certified questions."  Jurden went on to say that temporary stays have previously been entered, such as in 2003 and 1992, when questions about the validity of the procedures were being considered by the Delaware Supreme Court.

The ensuing court battle is not the only challenge to the state's death penalty law. A bill to abolish the death penalty failed 23-16 in the House of Representatives on Thursday, but some lawmakers are vowing to give it a second chance this spring.

The administrative directive referenced in this article is available at this link.

Prior related posts:

February 2, 2016 at 05:07 PM | Permalink


I think Delaware is being overly cautious. So far, the Supreme Court has not shown any indication that they are going to take an Alabama or Delaware case. In Hurst, they only addressed the "eligibility" issue. The discussion in Carr (and the earlier discussion in Marsh) suggests that there is no right to a jury trial on the "selection" issue. If my understanding of what I have read about Delaware law is correct, Delaware requires the jury to find that a defendant is death eligible as part of its recommendation and only allows a judicial override if the defendant is death eligible. Additionally, at worst, the potential for a judicial override is harmless in any case in which the jury recommends death.

Posted by: tmm | Feb 3, 2016 9:38:20 AM

Last time they executed someone was in '12 but their sixteen executions in the twenty years before that makes it somewhat notable actually as compared to most death penalty states.

Posted by: Joe | Feb 3, 2016 4:44:45 PM

I would be curious to hear a response by the blog to the 2/2 oral argument in Lambrix and swift response by FSC to stay execution.

Posted by: J_T | Feb 3, 2016 9:52:41 PM

When Delaware reinstituted the death penalty, they found out juries weren't voting for death (because it required a unanimous result). So they changed the law to a new one explicitly modeled after the Florida law in order to make the death penalty easier. Delaware's law really isn't functionally different except that Judges are required to give "great weight" to the jury's decision and cases where the jury voted 10-2 for life and the Judge overruled the decision were reversed (so the Alabama situation of Judges overruling a recommendation for life probably won't happen in Delaware).

Posted by: Erik M | Feb 4, 2016 8:47:06 AM


as usual, Polston and Canady seemed to be with the state. I don't think Labarga or
Perry said anything. However, Pariente and Lewis were very concerned about retroactivity. Lewis brought up the "who lives and who dies" arbitrary application well. Quince recused.

McClain said all inmates should be resentenced to life and of course, Browne opined no retroactivity to final cases. I believe he misspoke when he stated no state court ever found Ring retroactive. I have to go back and read State v. Whitfield. (Missouri)

A good opinion on Ring retroactivity is State of Arizona vs. Roger Wayne Murray.

Posted by: DaveP | Feb 4, 2016 11:17:09 AM

Does the fact that FSC stayed execution signal that the court is seriously considering retroactivity? I thought the arguments in favor of retroactivity under Witt were pretty weak. FSC recently found Miller v Alabama retroactive in Falcon but that was an Eighth Amendment case. Hurst is a Sixth Amendment case. Other Sixth Amendment cases (Apprendi, Blakely, Ring) were not found to be retroactive. I don't see how FSC can find otherwise in Hurst.

Posted by: J_T | Feb 4, 2016 9:03:55 PM

I think the FSC just wanted more time. This is probably one of the most important cases they will ever hand down. I cannot see them getting 4 votes to commute all the cases to life. Let us hope they don't tie 3-3.
They should follow Summerlin and possibly remand for harmless error the cases that are not final. Or they might send all the cases back for resentencing that are not final.

Last time they ruled on Ring's application to Florida's scheme, it was a very splintered opinion. I would expect the same

Posted by: DaveP | Feb 4, 2016 9:44:03 PM

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