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Florida House, Senate At Odds On Death Penalty Fix

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The daughter of one murder victim and the mother of another pleaded with Florida lawmakers last week not to require unanimous jury recommendations before death sentences can be imposed, pointing to their family members' cases as proof that unanimity is a bad idea.
The unanimity issue has become a flashpoint in the debate over how to fix Florida's flawed death-penalty sentencing process after the U.S. Supreme Court last month decided that the system is unconstitutional.

Lawmakers have vowed to address the Jan. 12 court ruling — handed down on the opening day of the legislative session — before the Legislature completes its work next month.

But the two chambers remain divided over whether to require unanimous jury recommendations for defendants to be put to death. The Senate backs unanimity, advocated by nearly all death penalty experts, while the House is sticking to a 9-3 jury recommendation, pushed by state prosecutors. Recommendations in the past could come from a majority of jurors.

With a 17-1 vote Wednesday, the House Judiciary Committee signed off on a measure (HB 7101) that included the 9-3 requirement, sending it to the House floor for final action.

The testimony of family members at the meeting was the latest attempt by state attorneys to convince lawmakers to adopt their suggestions.

"Justice won't be served" by allowing a single juror to thwart a recommendation of death, Emilee Cope told the panel.

Cope's father, Keith, was kidnapped, hogtied to a bed and left to die in 2009. Keith Cope died later from complications brought on by injuries sustained as a result of the attack. A jury voted 10-2 to recommend putting her father's killer to death, Emilee Cope said.

"The death penalty to me is equivalent to euthanizing an animal. They're given peace and they won't have to suffer anymore," Cope, a victim advocate for the Edgewater Police Department, said. "Meanwhile, my father suffered horribly. I wish he could have traded places with those defendants, in the sense that he would have been given a more peaceful, painless death."

Cope said later that 7th Judicial Circuit State Attorney R.J. Larizza asked her to speak at the meeting.

The House proposal approved Wednesday deals directly with last month's court ruling, which found that Florida's system of giving judges — and not juries — the power to impose death sentences was an unconstitutional violation of defendants' Sixth Amendment right to trial by jury.

The 8-1 decision dealt with the sentencing phase of death-penalty cases after defendants are found guilty. The ruling in the Hurst v. Florida case focused on what are known as "aggravating" circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determination of such aggravating circumstances be made by juries, not judges.

Under Florida law, juries make recommendations regarding the death penalty, based on a review of aggravating and mitigating circumstances, but judges ultimately decide whether defendants should be put to death or sentenced to life in prison.

The House proposal (HB 7101) would allow death sentences to be imposed only if juries unanimously decide that at least one aggravating factor exists. After weighing aggravating and mitigating circumstances, at least nine jurors would have to vote in favor of recommending death, a departure from the current law's requirement of a simple majority vote.

The House and Senate agree on the issue of requiring unanimous jury decisions on at least one aggravating factor before the death penalty can be considered. Both measures would also do away with a provision in current law that allows judges to override juries' recommendations for life imprisonment and instead order the death penalty.

But the House committee rejected an attempt by Rep. Jose Javier Rodriguez (D-Miami) to include other factors that would align the proposal with the Senate plan.

Aside from unanimous recommendations to the judge for the death penalty, the Senate measure (SB 7068) would also require prosecutors to provide notice to defendants when intending to seek the death penalty. The Senate bill would also place the burden of proof on prosecutors to demonstrate that aggravating circumstances outweigh mitigating circumstances when jurors consider whether to recommend the death penalty. Under current law, the burden of proof is on the defendant to convince jurors that mitigating factors outweigh the aggravators.

Defense lawyers, who back the Senate plan, argued that the changes would inoculate Florida's death penalty laws from future court decisions.

Of the 31 states that have the death penalty, Florida is one of only three that do not require unanimous jury recommendations about imposing death sentences. The only other two states that do not require unanimous decisions —  Alabama and Delaware — require at least nine jurors to vote in favor of capital punishment.

The amendment was aimed at "correcting some remaining potential further infirmities to protect our sentencing scheme," Rodriguez, an attorney, said. The amendment was voted down.

The two chambers "have room to compromise," particularly about providing notice to defendants when the death penalty will be sought, Sen. Rob Bradley (R-Fleming Island), said later Wednesday.

"We will find a resolution to the issue. I think there's some middle ground there," Bradley, a former prosecutor, said. "I don't think we're there yet."

Lawmakers are under pressure to resolve the issue before the session ends on March 11. Last week, the Florida Supreme Court indefinitely postponed the scheduled execution of Cary Michael Lambrix while justices consider the impact of the Hurst decision on Florida Death Row inmates.

Rex Dimmig, the public defender for the 10th Judicial Circuit, said the state's death penalty is essentially on hold until the sentencing law is changed.

But Gov. Rick Scott would not say what lawmakers should do to ensure that Florida's death penalty system is fixed.

"It's a very solemn duty. Here's how I think about it. I think about the victims. I think about their families. I think about the impact on their families, but again, if the Legislature passes something I'll be glad to review it," Scott told reporters Wednesday. "Right now, I know the Legislature is having some conversations. The courts are still reviewing what they are going to do, and I'll continue to follow whatever the court decides."

© 2016 The News Service of Florida. All rights reserved.

Dara Kam is the Senior Reporter of The News Service Of Florida.