Death penalty cases in limbo

State high court ruling means some will receive new sentencing hearing

More than half the inmates facing execution in Florida may be entitled to new sentencing hearings, the state’s Supreme Court ruled Thursday.

Answering a question that has been hanging over capital cases since January, the state’s high court ruled death sentences that were “final” before a key 2002 ruling could proceed, but those that were imposed or whose appeals were still pending after that date could be entitled to a new sentencing hearing.

At the beginning of 2016, the U.S. Supreme Court ruled that the state’s death penalty process was fundamentally flawed and unconstitutional, partly because it put too much power in the hands of judges and did not require juries to reach critical decisions about whether the circumstances of the crimes merited the death sentence.

The state Legislature responded with a new law requiring juries to make the necessary decisions and requiring the support of at least 10 jurors for a judge to impose the death penalty. But the state Supreme Court ruled two months ago that nothing short of a unanimous verdict would suffice.

Defense lawyers cheered the October de-

Defense lawyers predicted all 386 death penalty cases would be affected.

cision and predicted it would put all 386 death penalty cases in limbo, including 22 from Broward County and seven from Palm Beach County.

But prosecutors urged the state court to clarify whether its decision would apply retroactively or only to future cases. Thursday’s decisions in two cases sought to answer that question, though prosecutors and defense lawyers disagree on exactly how many cases will be affected.

The court tied its Thursday decision to a 2002 U.S. Supreme Court ruling — Ring v. Arizona — that ordered Arizona to put its death penalty in the hands of juries rather than judges.

“Florida’s capital sentencing statute has essentially been unconstitutional since Ring in 2002,” the court wrote in one of Thursday’s rulings, that of John F. Mosley, a Jacksonville-area man given the death penalty for placing his infant son in a plastic bag in 2004 and allowing him to suffocate.

Cases that were decided before the Ring decision can proceed, according to Thursday’s rulings.

The Broward State Attorney’s Office, while still reviewing the impact of the new rulings, predicted that nine cases decided before 2002 would be unaffected. The remaining 13 death row inmates from Broward might be entitled to new sentencing hearings, but even that’s not guaranteed, said Chief Assistant State Attorney Jeff Marcus.

“A determination still has to be made as to whether the error in those remaining cases was harmless,” Marcus said. In some cases, for example, defendants chose to have a judge make the decision rather than a jury. In others, jurors already reached a unanimous recommendation of death, and prosecutors could argue that the defendants would still have received a death sentence anyway.

But defense lawyer Richard Rosenbaum, who represents one such defendant, said he’s anticipating a new hearing because his penalty-phase strategy would have been different under different rules. Rosenbaum represented Randy W. Tundidor, who was sentenced to death in 2014 for the 2010 kidnapping and murder of his Plantation landlord, Joseph Morrissey. The jury that recommended the death penalty for Tundidor was unanimous, but Tundidor instructed his lawyer not to put up much of a fight in the sentencing phase, preferring to maintain his innocence rather than plead for mercy.

Had Tundidor known he could avoid the death sentence by persuading a single juror to hold out, he would have changed his approach, Rosenbaum said.

Such disputes are bound to be argued in as many as 200 death penalty cases across the state.

Orlando Sentinel reporters Rene Stutzman and Gal Tziperman Lotan contributed to this report.