Sleight of Hand in Florida’s New Death Penalty: Requiring, But Not Requiring, Jury Unanimity

JURIST Guest Columnist Chance Meyer of Shepard Broad College of Law,NOVA Southeastern University, discusses the Florida Supreme Court’s recent death penalty decision in Hurst and its implications …

Dai Vernon knew how to spot a cardsharp.

He searched the country for the best of them, learned their techniques and became the greatest sleight of hand magician that ever lived. He said magic tricks lead the mind, step by step, to defeat its own logic. By his definition, Florida’s new death penalty law is a first-rate magic trick.

Florida recently made itself appear to fix its death penalty system, but really just palmed the broken part.

On March 13, after half a century of death sentences requiring majority jury votes, Governor Rick Scott signed Senate Bill 280, requiring unanimous juries. Twenty-nine of thirty-one death-penalty states already required unanimity (Alabama remains the holdout).

The change has been lauded as “a big step to fix [Florida’s] death penalty law.” The Florida Supreme Court declared that Florida “bring[s] its capital sentencing laws into harmony with the direction of society.” One reporter even proclaimed “Florida’s death penalty is now legally sound.”

All the stage banter distracted from what the magician’s hands were doing.

Focus was directed to the 313 defendants whose capital trials, yet to occur, were awaiting a new death penalty regime and away from the 381 death row inmates already pending execution. The inmates’ death sentences are based on findings of judges, rather than juries (unanimous or otherwise), and were imposed under a sentencing regime found unconstitutional by the Supreme Court.

From 1977 to today, Florida executed 92 people. At that pace, 381 would take 165 years. So, with a century or two of unconstitutional executions yet to conduct, Florida’s current celebration of a legally sound death penalty looks an awful lot like sleight of hand.

The change to unanimity is an illusion that works like Vernon described. Step by step, legal developments surrounding Florida’s death penalty convoluted matters until logic was defeated. Justice Lewis of the Florida Supreme Court described it as “tumble[ing] down the dizzying rabbit hole of untenable line drawing.” A law professor testifying before the Florida Legislature’s House Judiciary Committee and Criminal Justice Subcommittee described it as “trying to hold onto a slippery otter.”

The sad result is that the public can no longer meaningfully scrutinize actions being taken with respect to Florida’s death penalty (which creates a paradox in Eighth Amendment law).

I will try to demystify two of the key maneuvers leading up to the unanimity law&#8212to spoil the trick, like Vernon would catch a false deal of cards&#8212but, fair warning, they are terribly complex. After all, that is what makes the trick work in the first place.

The Harmless Error Maneuver

Rewind to June 24, 2002. The Supreme Court ruled in Ring v. Arizona that, under the Sixth Amendment, juries&#8212not judges&#8212must find the facts that a state requires to be found before a defendant can be sentenced to death, even though judges can then make the sentencing decisions based on those facts.

In Florida, juries found facts supporting death sentences (such as a murder being “heinous, atrocious, or cruel”) and whether those facts outweighed evidence supporting a life sentence.

If the weighing seems less like a finding of fact than it does a matter of opinion on sentencing, then you are already beginning to see the trick. Hold on to that.

Based on the facts they found, juries would recommend a sentence, by simple majority. But judges would then find their own (alternative) facts and make the ultimate sentencing decision based on those.

Sometimes a jury would vote for life and a judge would impose death anyway. That was known as the “override.” It may sound like a barbaric thing of the past, but it is not. Just ask Matthew Marshall and William Zeigler. Their juries believed they should live, but they are sill on death row and Florida can still execute them.

In any event, Ring raised a big question in Florida: are jury fact-findings that support a recommendation, rather than the ultimate sentence, good enough to satisfy the Sixth?

It took fourteen years of desperate litigation and forty-one executions to get an answer to that question. Uselessly to the forty-one, the answer ended up being no.

Fast-forward to January 12, 2016. The Supreme Court struck down Florida’s death penalty in Hurst v. Florida pursuant to Ring. Turns out, 961 people, including the forty-one and the remaining 381, were sentenced under an unconstitutional death penalty regime.

It was widely reported that the constitutional problem addressed by Hurst was that Florida gave “judges rather than juries the power to condemn someone to death.” But that was not quite right. Remember, Ring was about fact-findings under the Sixth Amendment, not sentencing decisions, which are the province of the Eighth. While Hurst certainly has Eighth Amendment implications, its holding was of the Sixth, of Ring.

The problem addressed in Hurst was that juries did not make the fact-findings upon which sentences were ultimately based. Judges did.

Two things happened next.

In March, the Legislature hurriedly enacted a new death penalty with House Bill 7101. It got rid of the life-to-death override and required 10-2 jury “recommendations” (which became rather a misnomer once the override was gone). Politicians favored 10-2 over unanimity because (clearly not fans of Reginald Rose or Norman Rockwell) they did not want “lone holdout” jurors standing in the way of death sentences.

The new law lasted all of seven months. In October, the Florida Supreme Court struck it down.

The court made two earth-shattering rulings: that Hurst required unanimity for fact-findings and, going a step further, also for sentencing determinations.

That gets us back to present day. SB 280 was just a formalization of what the court had mandated, making the statute square with the case law.

But why did the court say that Hurst&#8212a Sixth Amendment ruling about majority fact-findings&#8212ends up requiring unanimous sentencing determinations? Well, remember when you started to see the trick and I asked you to hold on to it?

What happened was this: Florida had intertwined fact-findings and sentencing decisions, when it made the weighing of facts a prerequisite to imposing death. After all, what else is there to deciding someone deserves to die than deciding that the facts dictate that they deserve to die? (Mercy, perhaps, but mercy is a small footnote in Florida’s death penalty practice.)

Sometimes, when constitutional rights interact, they eat each other. In Florida, the Sixth just swallowed up the Eighth. The fact-findings could not be separated from the sentencing determination, so the fact-findings having to be unanimous meant the sentence did too.

Hurst ended up meaning Florida’s death penalty violated the Sixth and the Eighth. So, everyone on death row had their unconstitutional death sentences overturned, right?

Not so fast. The trick was just getting started.

The Florida Supreme Court also ruled that Hurst violations are subject to harmless error analysis, in which an appellate court can find that a constitutional violation did not matter to the outcome of a case. No harm, no foul. Pre-Hurst death sentences can still be carried out if a court finds that a jury probably would have made the necessary findings anyway, had the law complied with the Sixth Amendment.

So consider this&#8212here’s the real magic trick&#8212if the problem in Hurst was that trial judges were supplanting jury findings with their own, how then can appellate judges do the very same, under the guise of harmless error analysis, guessing what twelve, lay strangers might have done, had the law been something other than it was.

It is Florida’s incredible disappearing/reappearing constitutional violation. Juries, unanimous or split, are being replaced by judges, in order to cure the problem of juries being replaced by judges.

The Retroactivity Maneuver

Another big question that remained after Hurst was retroactivity; would Hurst even apply to the hundreds of death row inmates that came before?

The good news here was that we could at least expect a definitive answer, because retroactivity is a yes-or-no question. As Justice Lewis would later explain, “retroactivity is a binary&#8212either something is retroactive, has effect on the past, or it is not.” As Florida’s Capital Collateral Regional Counsel South would later tell the Legislature, “I have never seen the concept of partial retroactivity. . . . I just don’t know that it really exists.”

But the Florida Supreme Court conjured it up anyway. Abracadabra. As to whether Hurst is or is not retroactive, the court ruled, quite impossibly, it is both.

The court made June 24, 2002 the cutoff. For defendants whose cases were final after that date, Hurst exists. For those before, Hurst doesn’t. Of the 381 about 45%, or 171, came before.

Justice Lewis admonished that this “makes constitutional protection depend on little more than a roll of the dice.”

The trouble with partial retroactivity is that the whole reason for applying a case retroactively in the first place is that the case is so significant that extending its benefit to some (going forward) and not to others (from the past) would be too unconscionably unjust. The same is of course true of the June 24, 2002 cutoff.

The Florida Supreme Court once wrote that it is “difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable.” So it is, like ending a life based on a death penalty regime declared to violate the Constitution and society’s will.

But difficult magic tricks are the most impressive, which brings us back to Vernon.

Legend has it that when Vernon was a boy someone asked him what sort of magic he did. His response was to have them pick a card and, right then and there, to somehow pull that very card out of his pocket, then to say, “That’s the kind of magic I do.” After having pulled partial retroactivity out of thin air, it seems to be the kind Florida does as well.

Conclusion

As the law stands now, 171 defendants who came before June 24, 2002 can be executed unconstitutionally due to nonretroactivity. The remaining 210 can be executed unconstitutionally due to harmless error analysis. Florida could conduct the greatest campaign of knowingly unconstitutional execution in American history, while the audience has its head turned to the future.

Chance Meyer, J.D., is an instructor at Shepard Broad College of Law. From 2008 – 2016, he was assistant counsel to the Capital Collateral Regional Counsel-South, where he represented death-sentenced defendants in trial and appellate courts, in state and federal jurisdictions.

Suggested citation: Chance Meyer, Sleight of Hand in Florida’s New Death Penalty: Requiring, But Not Requiring, Jury Unanimity, JURIST – Academic Commentary, Mar. 21, 2017, http://jurist.org/forum/2017/03/Chance-Meyer-death-penalty.php