Lawmakers examine death penalty statute

first_img Lawmakers examine death penalty statute Senior EditorWhat is the best way to protect Florida’s death penalty? Prohibit judges from overriding a jury’s recommendation of life imprisonment — something that rarely happens? Or leave the law unchanged?That question confronted members of the Senate Criminal Justice Committee last month when Sen. Rod Smith, D-Gainesville, introduced SB 120 to make the override change.The bill and debate are part of the continuing fallout from the U.S. Supreme Court ruling last year in Ring v. Arizona, where the Court held that juries, not judges, should impose a death penalty.That has led to concern over Florida’s law where juries make recommendations, but the final penalty is imposed by the trial judge.“I am an absolute supporter of the death penalty,” Smith, a former state attorney, told the committee. “I do have a genuine concern, a belief, that if we allow the court to override a [jury] recommendation of life, then we have a possible problem.“My proposed bill is to do one thing. In death penalty litigation, what we would do is change the statute. If the jury recommends life, I propose the judge will not have the ability to override the recommendation of life.”It would also fix a problem with jury instructions, Smith said, adding, “I believe we ought to tell the jury straight out that if you recommend life, we don’t give that great weight, we give it preclusive weight. If you recommend death, we give that great weight.”Smith brought up his bill after the committee heard Carolyn Snurkowski, who heads the attorney general’s office that handles death appeals for the state, discuss Ring v. Arizona and its effect on Florida law. The committee also heard from several speakers, some of whom said the legislature should also require a unanimous jury to impose the death penalty.At the end of the meeting, following extensive discussion, Smith decided to wait for a vote so all committee members can review relevant state and federal decisions and come to him with any questions.At one point, Sen. Steven Geller, D-Hallandale Beach, referred to the complexity: “You have a bunch of lawyers sitting here arguing how many angels can dance on the head of a pin. We’re trying to dissect fine points of law and all we can give you is educated guesses.”Snurkowski told the committee that nine states were potentially affected by the Ring decision because either judges imposed the final sentence, or juries and judges together were involved. (Twenty-nine other states with the death penalty have it imposed only by unanimous jury.)Florida is distinguishable from Arizona, she said, because in Arizona the judge alone is responsible for the sentence, while in Florida the jury makes a recommendation that is considered by the judge.Furthermore, the U.S. Supreme Court denied certiorari twice in last-minute appeals for Linroy Bottoson, who was executed in December, in which Ring was raised and the Florida Supreme Court in Bottoson and one other appeal said Ring did not apply to those cases. That makes it unlikely, Snurkowski said, that Ring will be applied retroactively in Florida.While the U.S. Supreme Court has not directly considered the Florida law, that the “cert petitions were denied. . . is a good indication,” she said.Sen. J. Alex Villalobos, R-Miami, pressed Snurkowski on the rulings and whether any changes could jeopardize the law.He argued that it would be illogical for the U.S. Supreme Court, after denying the cert petitions, to come back and find constitutional problems with Florida’s law.“Any change could make it unconstitutional?” he asked Snurkowski.“That’s a broad statement,” she replied.“They have not seen a problem with the death penalty statute. Any changes we make, one word, would open the door to an attack, wouldn’t it?” Villalobos said.“I’ll give you that,” Snurkowski answered.But Smith said he had a different reading of events. While the Florida Supreme Court unanimously said Ring didn’t apply to Bottoson and the other case, several justices expressed concern that it could in future cases. He noted that recently retired Justice Major Harding wrote that the concerns, which include the judicial override issue, could lead to a repeal of the death penalty law.As for the cert issues, “when a court denies cert, that is an extraordinary remedy, and that is not a ruling on the merits,” Geller said. “That merely means the court has denied consideration in those extraordinary circumstances.”He also said he was concerned that Florida law allows judges to find aggravating circumstances that can justify a death penalty without having those circumstances presented to the jury.“Florida law still appears to say in order to impose the death penalty, the judge has to find aggravating circumstances,” Geller noted. “That’s close to what the Court threw out in Ring.” S ixth Circuit Public Defender Bob Dillinger said the Florida Public Defenders Association supports the bill, but thinks it should go further and require a unanimous jury to impose the death penalty, as is the case in almost all other states. He noted that a unanimous jury is required when a minimum mandatory sentence will be imposed in a criminal case, but is not required for the most serious punishment.“We are putting the citizens and taxpayers at the risk and expense of extensive litigation and with the wrong result,” he said.Russell Smith, legislative affairs chair of the Florida Association of Criminal Defense Attorneys, concurred, saying Florida is the only state that does not require a unanimous jury.“Most of us who work with the death penalty agree the one thing that is most likely to be declared unconstitutional is the judicial override,” he said, adding that several federal opinions indicate the jury decision should be unanimous.Jerry Blair, president of the Florida Prosecuting Attorneys Association, also voiced support for the bill, although he conceded some state attorneys do not think a change is needed.“We have to balance the risk of doing nothing in light of Ring and perhaps having our entire system overturned,” Blair said, “or engaging in a wholesale rewrite, which I think is unwise.”Villalobos said, philosophically, he would prefer to impose the death penalty only with a unanimous jury, but, realistically, he’s reluctant to tamper with the law and risk a slew of new litigation.And Smith concluded that he wanted more time for committee members to read court opinions and have their questions answered. February 1, 2003 Gary Blankenship Senior Editor Regular News Lawmakers examine death penalty statutelast_img

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