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October 19, 2016

Is Florida really going to conduct full post-Hurst resentencings for hundreds of condemned murderers?

The question in the title of this post is prompted by this local article headlined "Death penalty ruling could mean new sentencing for 386 murderers in Florida."  Here are excerpts:

The Florida Supreme Court’s decision last week to require unanimous jury votes for executions has thrown the state’s death penalty into disarray. In a Friday ruling in Hurst vs. Florida, the justices eliminated part of Florida’s death sentencing laws, but lawyers and legislators disagree about what comes next.

Some say that it could lead to sentences being thrown out for nearly 400 convicted murderers awaiting execution at Florida State Prison, and that it may cripple the state’s death penalty long term. Others say the only thing that has changed is that a jury must now vote unanimously in favor of the death penalty. What’s clear is this: Even with the case decided, Florida’s legal fights over capital punishment are far from over.

Death-row defense lawyers say the Hurst decision leaves Florida without a functioning death penalty until the state Legislature can convene and rewrite the law. “This is so big,” said Martin McClain, a Broward County lawyer who represents death-row inmates appealing their sentences. “I don’t know of a way to overstate the significance.”

But legislative leaders say that such action won’t be necessary. “With Friday’s ruling, imposing the death sentence will require a unanimous verdict with or without legislative action,” said Katie Betta, a spokeswoman for Senate President-designate Joe Negron, R-Stuart. “In the past, the Senate has been supportive of the unanimous verdict requirement.”

Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, which represents the 20 state attorneys, agrees that no legislative action is necessary. “The death penalty is certainly still legal in Florida,” he said. “The procedure is what the Supreme Court reacted to.”

The court’s ruling has raised other questions about how the state should handle the 386 inmates on death row under old sentencing rules that have since been thrown out. The Supreme Court has not indicated which inmates could be eligible to have their sentences changed. Even the most experienced death-row defense lawyers don’t know what to expect. McClain said he thinks the court will issue a ruling about which cases are going to be treated like that. “Until we have that sort of broad picture,” McClain said, “we’re kind of stuck waiting.”

Some death-row inmates — including Timothy Lee Hurst, convicted of killing a co-worker in Pensacola in 1998 — will have new sentencing hearings. The court will bring in a new jury to hear evidence and decide whether Hurst should be executed or sentenced to life in prison. But not all death penalty cases are the same. So it’s possible the court could decide that certain kinds of cases are eligible for a re-sentencing and others are not.

For example, the court could throw out sentences from time periods when the death penalty laws were overturned as unconstitutional, or they could only allow a new jury for death-row inmates who raised certain complaints in their appeals. But Maria DeLiberato, a defense lawyer with the Capital Collateral Regional Counsel in Tampa, warns that could be seen as an “arbitrary and capricious” enforcement of the law and raise new allegations that Florida’s death sentences flout the U.S. Constitution’s ban on cruel and unusual punishment.

She’s hopeful that the court would allow all inmates a new sentencing hearing, not just some of them. The state attorneys worry about the high costs of a small wave of re-sentencing hearings, let alone 386 cases. “We do not have the manpower to do that,” said Jacobs. “We’d have to get assistance to do that from the Legislature.”

October 19, 2016 at 09:18 AM | Permalink


Doug, I have been following the action in Hurst ever since cert to SCOTUS was granted, and I believe that the legislature has only itself to blame for the mess. It was obvious that Florida's statute couldn't be reconciled with Ring v Arizona and the state is now overwhelmed with the fallout.


Posted by: bruce cunningham | Oct 19, 2016 11:46:06 AM

I have just read the Miami Herald article and the spokesperson for the legislature has no idea of the number of very complex issues that will have to be dealt with.

Florida doesn't require an aggravating factor to be alleged in the indictment. Cole v Arkansas says it violates due process for a def to be tried for a crime he hasn't been charged with. Alleyne makes it clear that a core crime plus an aggravating factor constitutes a new, greater offense. Seems to me that means that the def has to be indicted by the grand jury for that new offense of capital murder

They have some aggravating factors that I don't think can pass muster post-Ring. Like "The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification." What does that mean, 'no pretense of moral or legal justification."

Posted by: bruce cunningham | Oct 19, 2016 12:00:38 PM

Why would there be a re-opening of cases where the judgment is final? That seems a huge imposition on victims' families.

Posted by: federalist | Oct 19, 2016 1:30:22 PM

It seems an unconstitutional imposition of the death penalty would be a huge imposition on defendants, no? They could also convert the unconstitutional sentences to LWOP like they did after Furman v. Georgia if they were worried about the imposition on the victims's families. In addition, in cases where there were in fact unanimous verdicts, I suspect the argument for reopening the case is quite weak.

Regarding a fix, I suspect a statutory scheme would be best practice, but I suspect temporary fixes would be viable (e.g., if they're required to allege the aggravating factors, the prosecutors could simply allege it in the indictment/information/presentment even if State law doesn't mandate it).

Posted by: Erik M | Oct 19, 2016 2:34:05 PM

Erik, so what, a final judgment is a final judgment--and there is no right to rip open a final judgment due to subsequent changes in the law.

Why would we hook up capital murderers when we have a final judgment?

Posted by: federalist | Oct 19, 2016 2:43:03 PM

federalist, what if the judge who imposed the "final judgment" didn't have jurisdiction to enter that judgment? Seven hundred years of Anglo-American jurisprudence supports the notion that a citizen cannot be tried for a crime unless a Grand Jury finds that there is probable cause the citizen committed a certain crime. Florida requires a Grand Jury indictment.

You talk about "subsequent changes in the law." Ring has been the law since 2002. Florida just chose to ignore it.

It is undeniable that capital murder is a different, and greater, offense than simple murder. What if a person was convicted of a crime he wasn't charged with? Seems to me a def should be punished only for crimes he was charged with committing.

Hurst is one of the most unusual cases I've seen coming out of the US Supreme Court. The cert petition was mostly concerned with the lack of unanimity by the jury. There was also an Eighth Amendment claim. The Supreme Court granted review, and then on its own rewrote the issue presented, which was whether or not the Florida capital sentencing law was unconstitutional. They then ruled it violated the Sixth Amendment. It is not very often that you see the Court write its own statement of the issue. My point is that the fact they did illustrates how much of an outlier Florida was.


Posted by: bruce cunningham | Oct 19, 2016 3:30:19 PM

um, bruce, that's defense lawyer nonsense--a final judgment whether or not based on error is a final judgment-- so the subsequent law rule obtains--moreover, Florida's scheme was approved by SCOTUS and not overturned until recently.

Posted by: federalist | Oct 19, 2016 3:43:04 PM

A state can call something a final judgment, but it's clear based on plenty of caselaw that not all things called final judgments are actually final. In some cases, they're constrained by the US Constitution and the Writ of Habeas Corpus. How many final convictions were reversed based on Gideon v. Wainwright, for example?

Posted by: Erik M | Oct 19, 2016 4:20:05 PM

I don't read the U.S. Supreme Court opinion in Hurst as requiring that aggravating circumstances be alleged in the indictment/information. I think there is a due process right to notice and most states require the filing of a notice of alleged aggravating circumstances before trial. Since Hurst is a right to jury case, I am not sure that the "elements" as used in the Apprendi line of cases necessarily correspond to a specific document -- particularly as the right to a grand jury indictment does not apply to state charges.

I think that the Florida Supreme Court is reading Hurst more broadly than the U.S. Supreme Court would as far as the right to a jury on the weighing factor, but the Florida Supreme Court partially tied their opinion to the Florida Constitution; so before Florida could get this issue to the U.S. Supreme Court they might need to fix their state constitution first.

As far as cases impacted, there seems to be four issues: 1) Is the denial of the right to a jury determination structural; 2) did the jury implicitly or explicitly find an aggravating factor (most likely in cases in which the aggravating factor was a separately charged felony); 3) is there a right to a jury determination if the aggravating factor is a prior conviction; and 4) did the jury unanimously make the findings necessary for and unanimously recommend death? (The second and fourth questions come from my ignorance of how Florida does its verdicts. If the verdicts indicate which jurors joined in the verdict or if the jury was polled, there may be some unanimous verdicts among the 400. If the verdict is just signed by the foreperson and the jury was not polled, all 400 might have to be tried again.)

As the Montgomery concurrence noted, the issue of finality of the judgment is a matter of state law. Most states and the federal government have some form of collateral review in criminal cases (mostly because of the difficulty of having an adequate record on IAC claims for direct appeal). Many states also have procedures permitting the recall of an appellate mandate. I don't know if Florida law would permit the filing of a new collateral review motion or the recall of the mandate to raise a new "Hurst" claim on these old cases. In light of some of the post-Ring cases, a Hurst claim is not something that could be raised on federal review if it is untimely under state law.

Posted by: tmm | Oct 19, 2016 5:19:44 PM

thanks for the comments tmm

first, the easiest response. A prior conviction is Apprendi-exempt by definition and therefore does not require jury determination. Almendarez-Torres lives.

Second, you are correct. Hurtado v California says the indictment clause of the US Constitution does not apply to the states. But if the Sixth Amendment says a core crime and an aggravator is a new crime, then the Florida Constitution requires an indictment

third, is the lack of a jury trial structural? In other words, does harmless error apply? Analogizing to Recuenco v Washington, I would predict the Supreme Court would say yes it does. Even Scalia, surprisingly, agreed in Recuenco. But, when Recuenco was sent back to the Washington State Supreme Court, that court "overruled" the U S Sup Ct and said under state law, there was structural error.

your point about an implicit finding of an ag is akin to the harmless error question.

As far as a verdict sheet indicating which jurors voted for what, that would be, in my opinion, a clear intrusion into jury deliberations, strongly prohibited. Take a look at the transcript of the oral argument last week in Pena-Rodriguez v Colorado. The argument that racial comments made during jury deliberations was a narrow exception to the no intrusion into deliberation rule, received a hostile reception from the court.


Posted by: bruce cunningham | Oct 19, 2016 5:36:31 PM

one other comment. In my opinion, only one ag is required in the indictment. The reason for that is there is only one Apprendi fact per case, because the second ag does not increase the potential punishment above the Blakely maximum.

Posted by: bruce cunningham | Oct 19, 2016 5:40:43 PM

Florida's exceptions to the rule against second or successive petitions will probably permit the filing of new Hurst unanimity claims, and Florida's retroactivity jurisprudence is more expansive than Teague. The unanimity requirement promotes accuracy by narrowing death eligibility so it might even fit through Teague. I think it's very likely that Florida courts will have to hear these Hurst claims.

Posted by: Gray Proctor | Oct 19, 2016 11:05:02 PM

Bruce, my comment on the verdict sheet reflects not knowing how Florida structures their verdicts.

In my state, because civil verdicts do not have to be unanimous, the civil verdict form requires all of the juries who join in the verdict to sign it. Since the criminal verdict has to be unanimous, the verdict is only signed by the foreperson. In either a criminal or civil case, a party can request that the jury be polled to see if the required number of jurors actually agreed to the verdict. So if a jury were polled and all twelve said that they agreed to the verdict (or the jury form required all of the jurors who joined in the recommendation to sign), the record in that case might demonstrate a unanimous verdict.

As to the specific findings, I know that some states treat the death penalty as having special issues or questions in which the jury has to note those findings in its verdict. (E.g., In Texas, the death verdict used to -- and still may -- require the jury to answer "yes" on the question of whether the defendant posed a future danger before the jury could return a death verdict.)

Posted by: tmm | Oct 20, 2016 5:53:33 PM

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