Death penalty cases can proceed

Florida Supreme Court rules lawsuits can advance before legislators fix bill to require jury unanimity

TALLAHASSEE — In what was described as an “about-face” after a previous ruling, the Florida Supreme Court on Monday ordered that death penalty cases can proceed, even with an unconstitutional law still on the books.

The order came as the Legislature prepares to address a pair of Florida high court rulings last fall that struck down the state’s most recent death penalty sentencing scheme as unconstitutional and effectively halted capital cases.

In a pair of October rulings, the state court ruled that a new law — passed in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida — was unconstitutional because it only required 10 jurors to recommend death “as opposed to the constitutionally required unanimous, 12-member jury.”

The October majority opinion in the case of Larry Darnell Perry also found that the new law “cannot be applied to pending prosecutions.”

But in a reversal of that decision Monday, the majority ruled

that capital cases can move forward, even before lawmakers fix the statute.

Attorney General Pam Bondi hailed the ruling, saying in a statement it “provides our courts with the clarification needed to proceed with murder cases in which the death penalty is sought.”

The majority in the 5-2 decision was made up of Chief Justice Jorge Labarga and justices R. Fred Lewis, Charles Canady and Ricky Polston, along with newly seated Justice Alan Lawson, who joined the court at the end of December.

The ruling sent public defenders scrambling and prompted cheers from prosecutors.

A spate of death penaltyrelated rulings by the Florida court in the aftermath of the U.S. Supreme Court decision in January 2016 in Hurst “created a great deal of paralysis and uncertainty in the system,” House Judiciary Chairman Chris Sprowls, a former prosecutor, told The News Service of Florida in an interview Monday.

Monday’s decision in the consolidated cases of Patrick Albert Evans and Juan Rosario came as courts have been split on how to handle cases in which prosecutors are seeking the death penalty.

A Pinellas County judge last fall wanted to move forward with Evans’ trial, while a judge in Rosario’s Orange County case decided that the state could not pursue the death penalty.

The majority on Monday decided that the new law can be applied to pending prosecutions — and is constitutional — “if 12 jurors unanimously determine that a defendant should be sentenced to death.”

But in her dissent, Justice Barbara Pariente argued that what could be a “temporary” fix, until lawmakers address the issue, could lead to more litigation. “Such concerns are precisely why it is for the Legislature, not this [Supreme] Court, to enact legislation curing the act’s fatal 10-2 provisions, assuming the Legislature intends for the death penalty to continue to be imposed in Florida,” Pariente wrote in a dissent joined by Justice Peggy Quince.

But Sprowls, R-Palm Harbor, said the decision “finally” tells lower courts they can proceed with capital cases.

“That is what I think people within the criminal justice system would expect. What they did not expect is to have a paralysis created, and that’s what the court had done. Today, they have alleviated that paralysis by at least allowing cases to proceed,” he said.

Defense lawyers, however, took a harsher view.

“As a society, we rely upon court precedent to determine how to interpret and apply the laws. The [Supreme] Court’s aboutface within these opinions is confounding. They also seem incongruent with the court’s unanimous plea, in [a case known as] Steele, to the Legislature to fix what the court said it couldn’t,” 10th Judicial Circuit Assistant Public Defender Pete Mills, who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee, told The News Service.

Mills was referring to a 2005 opinion in State v. Steele in which the court urged the Legislature to require a unanimous jury vote, rather than the previous simple majority vote, in capital case proceedings.

Though Monday’s opinion may have resolved questions about how the courts can proceed for now, it likely won’t slow down the Legislature’s rush to address the issue early in the upcoming session that begins March 7.

“We still want to move it rapidly, get it up and out to make sure there’s no question that this is what the statute says and that we have a working death penalty scheme in the state of Florida,” Sprowls said.

Sprowls’ committee is slated to consider a measure (HB 527) today that would do away with the 10-2 jury recommendations and instead require unanimity for death sentences to be imposed. A Senate panel will give a final vetting to a similar proposal the following day. The issue only deals with the sentencing phase of deathpenalty cases, after jurors unanimously find defendants guilty of crimes.

House Speaker Richard Corcoran, R-Land O’Lakes, and Senate President Joe Negron, R-Stuart, told The News Service — before the court’s decision Monday — they wanted to send a death penalty measure requiring unanimous jury recommendations to Gov. Rick Scott by the end of the session’s first week.

“My position on it is that you have about 200 death penalty cases that are in abeyance right now because of the Supreme Court’s ruling, and I can’t think of anything more important to the family of victims and also to a person charged with a capital felony that their cases proceed justly and with due process through the criminal justice system,” Negron said Wednesday.

“To me, it’s our responsibility as legislators to make sure that the law is appropriately enforced. That would be a top priority,” Negron said.

The cases “in abeyance” referred to more than half of Florida’s Death Row inmates who are eligible for new sentencing hearings under a separate state court ruling addressing retroactivity of the Hurst decision, which was predicated on a 2002 U.S. Supreme Court ruling in a case known as Ring v. Arizona.

The legislation being considered by the House and Senate would not have any impact on retroactivity and would likely only affect future capital cases or those already under way.