Attorney General Pam Bondi, warning that murder trials across the state could be placed in limbo, has asked the Florida Supreme Court to clarify a sweeping death penalty ruling it handed down last week.
In two linked cases, the court first concluded that death sentences must require a unanimous jury and then struck down a newly enacted law that allowed a defendant to be sentenced to death as long as 10 of 12 jurors recommended it.
In the rulings, the court made clear that it was not declaring the death penalty unconstitutional. But in the decision that struck down the new law, the court also stated that “the law could not be applied to pending prosecutions.”
One of Bondi’s senior attorneys, Carol Dittmar, filed a motion Thursday on behalf of the attorney general asking that the court revisit its decision, saying that the way the ruling was written “unnecessarily invites continued litigation.”
“The language leaves open the possibility that defense attorneys will assert that no valid death penalty law exists in Florida,” Dittmar wrote in the court filing, adding later that the court needed to clarify its ruling to “avoid any potential miscarriage of justice.”
The motion by Bondi asserts that death penalty cases could proceed in Florida as long as juries were told they must reach a unanimous decision on whether to recommend capital punishment.
But Marty McClain, a long-standing death penalty attorney who filed a legal brief in one of the cases, said last week that it would be a risky move for prosecutors to proceed until the Florida Legislature rewrites the state’s death sentencing law.
“I think at the moment that there’s no statute in place for governing how to proceed,” McClain said.
That means, however, it could be months before the issue is resolved. State legislators are scheduled to return to the Capitol next month for a one-day organizational session, but the next regular session isn’t until March.
Florida’s death penalty law was upended as a result of a case involving Timothy Lee Hurst, who was convicted using a box-cutter to kill a co-worker at a Pensacola Popeye’s restaurant in 1998. A jury had divided 7-5 over whether Hurst deserved the death penalty, but a judge imposed the sentence. The state Supreme Court initially upheld his sentence, but the U.S. Supreme Court this past January declared the state’s death penalty sentencing law unconstitutional because it gave too much power to judges to make the ultimate decision.
That ruling led the state to halt two pending executions, and state legislators rushed to overhaul the law. They gave more sway to juries, including prohibiting a judge from imposing the death penalty if the jury recommended life in prison.
The Republican-controlled Legislature, however, rejected calls to require a unanimous decision from a jury, settling instead for a supermajority of 10 jurors. Prosecutors were strongly opposed to requiring a unanimous jury decision, pointing out that some of the state’s most notorious criminals including serial killer Ted Bundy did not receive a unanimous jury recommendation. An analysis prepared for the Legislature showed that only 21 percent of death penalty sentences handed down over the past 15 years were recommended unanimously.
The Florida Supreme Court, however, last week vacated Hurst’s death sentence and ordered a new sentencing hearing. In that decision, justices ruled that a unanimous jury decision was needed to keep the death penalty “constitutionally sound.” The court struck down the state’s new sentencing law in a case brought by Larry Darnell Perry, a St. Cloud man accused of killing his 3-month-old son in 2013.