The procedure for Florida’s Death Penalty was found to be unconstitutional, despite efforts to rework it, until March of last year, when a procedure that meets Constitutional muster was approved and signed into law. But what to do with the cases that had been sentenced under the old procedure. Florida’s Supreme Court ended up splitting the baby, basing their decision on when the US Supreme Court issued their controlling decision in Ring v. Arizona back in 2002. The Florida Court decided that the rule would be applied retroactively to cases decided after the Ring decision, but that individuals sentenced before then are out of luck: even though the Court had already decided the procedure used to sentence them was unconstitutional.
The decision is based on the rule that decisions based on procedure will not be retroactive. In the last several weeks, the Court has been busy issuing ruling after ruling that declines to apply the rule announced in the Hurst case to pre-2002 convictions. This column from the Tampa Bay Times takes a look at the spate of opinions that have recently been released, and the sometimes incongruous results. It’s definitely worth a read.
Florida effectively has no death penalty right now. First, the procedure that had been in effect for years was ruled unconstitutional by the U.S. Supreme Court, in the Hurst decision. Then, the legislature rushed through a new law to try to fix it, but the new law also failed to require a unanimous recommendation by the jury, and the Florida Supreme Court struck it down, as well. A new bill seeks to correct that shortcoming.
This bill in the State Senate is the first step in changing the law to make a lawful death penalty. The Florida House would also have to pass a law, and then for it to be signed by the governor before the State can resume seeking the death penalty. Right now the death penalty is on hold, pending a new law. The House may end up looking at even more extensive changes to the death penalty when they take up the issue, probably in this upcoming session, as well. The legislature may also look at changes to the Stand Your Ground Law this year.
FL Supreme Court
When the Florida legislature passed the “Stand Your Ground” law, one of the provisions is for immunity from prosecution from those who used force in self-defense, under the law. The lawmakers failed to explain exactly how this immunity would be exercised. The courts then worked to apply the law, and crafted a system where the accused can file a motion to dismiss based on that promise of immunity, and would have a chance to show the court at hearing they were entitled to immunity.
At issue is that the courts have found the burden is on the accused to prove their entitlement to immunity, instead of the state. The state normally bears the burden of proof, and some proponents of the law do not like that the burden has shifted onto the protected people the law was designed to protect. Unfortunately for them, the Florida Supreme Court upheld that procedure, since there was no specificity in the law. Lawmakers are now looking at the possibility of amending the law to put the burden to demonstrate that individuals are not immune in self-defense cases back on the state.
See Also: Florida Supreme Court Opinion upholding the procedure, Bretherick v. State
and the latest story via NBC-2
I was actually kind of surprised they had to litigate this issue, what with the right to remain silent being a Constitutionally protected right. Last week, the Florida Supreme Court unanimously agreed with the 4th Circuit Court of Appeal that it is improper for the state to comment on the the pre-Miranda silence of a Defendant who does not take the stand. Basically, if someone exercises their right to remain silent… it cannot be used against them. I suspect the Florida Supreme Court was suprised the issue needed to be litigated, the 4th DCA opinion that they upheld was just issued on February 18. The appellate court certified the question as one of great public importance, but that is still an impressive turnaround at the highest court in the state.
Donna Horwitz, via FL DOC
The Court sent back the conviction of Donna Horwitz, convicted of first degree murder in the death of her husband. When police responded to the shooting, they asked Ms. Horwitz several questions, and she stood mute. The prosecutor successfully argued at trial that her silence was indicative of a consciousness of guilt, and she was convicted and sentenced to life in prison. The Court ruled, consistent with longstanding precedent around the country, that his is unfair comment on the right to remain silent. It would essentially force a defendant to testify to rebut the assertion, which is improper.
Further, the court observed that the evidence of silence would not be relevant and is inadmissible under basic rules of evidence. While silence potentially could indicate consciousness of guilt, the meaning is ambiguous. It could be shock, or a concern that officers would not believe the story, or many other things. Due to the ambiguity, it is not relevant to the elements of the crime, and would also be inadmissible for this reason.
You have a right to remain silent… use it. The State cannot use it against you if you do.
Posted in 5th Amendment - Miranda Rights, 6th Amendment - Fair Trial, Criminal Law, Florida, Gray Menace, Uncategorized
Tagged 5th ammendment, donna horwitz, florida, jupiter, miranda, murder, silence, supreme court
Florida’s Death Penalty laws are once again in disarray.
The Supreme Court
Last year, the Supreme Court struck down the procedure Florida was using to determine when the death penalty should be imposed, in the Hurst case. That meant that there was functionally no death penalty in the state of Florida. The legislature moved quickly to amend the law to establish a new procedure to prosecute the death penalty in Florida, and a new version was signed into law in March. Now, all that work is out the window…
Judge Milton Hirsch, a circuit judge in Miami-Dade, has ruled that the new procedure is also unconstitutionally inadequate. The Florida procedure does not require a unanimous jury verdict before the death penalty can be imposed. Florida and Alabama are the only states that did not require unanimity, and that specific issue was not discussed by the Supreme Court in the Hurst case. Ultimately, the issue is likely to be appealed to the Florida Supreme court, and potentially the U.S. Supreme Court again, but Judge Hirsch’s opinion is the first to address the issue since the new procedure was passed.
Hirsch was critical of the law, finding that the changes were not enough. He wrote, “Arithmetically the difference between twelve and ten is slight, but the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”
Timothy Hurst, currently on Death Row
Meanwhile, the other issue up in the air is whether the Hurst decision is retroactive. That is, are all of the Floridians on death row entitled to new sentencing hearings?- 390 of them are currently on death row. While they would still be subject to a new death sentence, a ruling finding that Hurst is retroactive would likely spare a great number of inmates that the state would not wish to retry their sentencing hearings.
While it seems to be a no-brainer that if the procedure used to impose death was unconstitutional that the sentences could not stand, the courts have often held that these types of rulings are procedural, and do not apply retroactively. It will be interesting to see what the Florida Supreme Court does on the issue. Until then, Florida executions will have to be on hold. The Florida Supreme Court recently heard arguments regarding whether Hurst will mandate that he, and many other similarly situated cases will be reduced to life without parole.
Posted in 14th Amendment - Due Process, 6th Amendment - Fair Trial, Criminal Law, Death Penalty, Florida, Supreme Court, Uncategorized
Tagged death penalty, Jury, murder, procedure, ring, sentencing, supreme court, timothy hurst, trial
“…there currently exists no death penalty in the state of Florida…”
Since the Supreme Court struck down the procedure Florida used to impose the death penalty in the Hurst case, there is currently no legal method to proceed on a death penalty case at this time. A Pinellas judge said as much this week, merely stating the obvious, as he rejected a prosecutor’s notice of intent to seek the death penalty. The legislature has already indicated they are going to address the death penalty procedure. The bigger question will be whether the courts apply the Hurst ruling retroactively, which would effectively preclude imposing the death sentence to the current death row inmates.
Background on Crimcourts.
The Supreme Court has found that Florida’s unique death penalty sentencing procedure is unconstitutional. The court found years ago that a jury must find the aggravating factors necessary and to makes the ultimate selection of a sentence of death. Florida’s procedure requires the jury to find the factors and to make a recommendation of death, but then allows the judge to make the final decision. The court was not satisfied with this advisory function of the jury. The death penalty sentencing procedure was found to be insufficient and the cases that previously supported it have been overturned by this week’s 8-1 decision.
Some news sites have said that the Court found Florida’s death penalty Unconstitutional. This is incorrect… it was the procedure by which Florida imposes the death sentence that has been found lacking. Currently there are about 365 inmates on Florida’s death row, and probably all a product of this sentencing scheme. Undoubtedly, they will all be raising this issue. The legislature is already considering bills to adjust the sentencing scheme to comport with the court’s ruling.
Convicted Killer Timothy Hurst via FL DOC
However, this decision may not provide relief for many of the inmates already sentenced to death. Generally, a decision won’t be retroactive if it deals with a procedural issue, and this is very much a procedural ruling. It would seem shocking that courts in the future might allow dozens or hundreds of death sentences to stand based on sentences that did not include the Constitutionally required fact finding by juries… but that remains to be seen. We’ll be watching closely.
Here’s the slip opinion in Hurst v. Florida.
Posted in 6th Amendment - Fair Trial, Criminal Law, Death Penalty, Florida, Supreme Court, Uncategorized
Tagged death penalty, Jury, prodecure, ring, sentencing, supreme court, timothy hurst, trial