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South Florida Judge Rules Death Penalty Fix Unconstitutional

Brian Turner

TALLAHASSEE — A Miami-Dade County judge ruled Monday that a state law allowing the death penalty to be imposed without a unanimous jury decision is unconstitutional, adding to the challenges facing Florida's capital punishment structure.

In his 18-page opinion, Circuit Judge Milton Hirsch said a recent change to death-penalty sentencing means Florida prosecutors now need the votes of all 12 jurors to impose the death penalty, instead of a majority or supermajority.

"A 21st-century Floridian seeking to argue that the right purported to be protected by (the state Constitution) does not include the requirement of a unanimous verdict must be prepared to rebut the unequivocal expression of the common law, the received wisdom of 19th-century Florida lawyers and judges, a handful of reported Florida opinions, and a century-and-a-half of shared understanding," Hirsch wrote. "And he must be prepared to do so without any ammunition at all, for he will find no Florida cases, no Florida law-review articles, and no Florida history to support his position."

Hirsch's findings in the case of Karon Gaiter, who is charged with one count of first-degree murder, came after the Legislature approved changes to Florida's death-penalty system during the annual session that ended in March. Those changes were prompted by a U.S. Supreme Court decision that tossed the state's previous regime for instituting the death penalty.

Under the old system, a majority of jurors could issue a death-penalty recommendation that could be followed or ignored by the judge in the case. But under the new law, at least 10 members of the jury must vote for capital punishment in order for a convicted murderer to be put to death; the judge can instead sentence the defendant to life in prison, but can't impose the death penalty if the jury hasn't recommended it.

That, Hirsch wrote, essentially changed the jury's decision from a "straw poll" to a verdict, which has always been understood to require a unanimous vote.

"Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors — every single one of them," he wrote in the ruling, posted online by the Miami Herald.

During the spring legislative session, the state Senate pushed to require a unanimous vote for the death penalty, but the state House balked, and Attorney General Pam Bondi and state prosecutors also opposed the proposal. In a compromise, the two chambers settled on requiring 10 jurors to vote for the death penalty. Hirsch's ruling is almost certain to be appealed.

Somewhat ironically, it was a different part of the sentencing process that drew the U.S. Supreme Court ruling that struck down Florida's death penalty process. The high court's 8-1 decision, in a case known as Hurst v. Florida, found that the state's system of giving judges — and not juries — the power to impose death sentences is an unconstitutional violation of defendants' Sixth Amendment right to trial by jury.

The Hurst decision dealt with 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 determinations of such aggravating circumstances must be made by juries, not judges.

Under Florida's new law, juries will have to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed.

At the time that the law passed, some legislators raised the possibility that a non-unanimous jury recommendation could come back to haunt the Legislature. But prosecutors and victims' advocates said the Supreme Court hasn't ruled that unanimity is required.

Last week, the Florida Supreme Court heard arguments on whether convicted murderers who were sentenced to death before the Hurst decision are entitled to automatically have their sentences reduced to life in prison without the chance for parole. That case doesn't revolve around the unanimity issue.