TALLAHASSEE, Fla. (The News Service of Florida) - Attorney General Pam Bondi has asked the Florida Supreme Court to clarify a ruling last week that struck down a portion of the state's death-penalty law, arguing that failing to do so "will only generate confusion."
In a pair of opinions issued last Friday, the court found that a statute, passed in March in response to a U.S. Supreme Court decision in a case known as Hurst v. Florida, was unconstitutional "because it requires that only 10 jurors recommend death as opposed to the constitutionally required unanimous, 12-member jury."
Bondi's request for clarification came in the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son. An appellate court had asked the Florida Supreme Court to decide whether the law passed in March applied to cases that were already under way.
In last Friday's 5-2 decision in the Perry case, the court said that the law was unconstitutional because it did not require unanimous jury recommendations and "cannot be applied to pending prosecutions."
The state contends that death penalty prosecutions can continue without a change in the law, so long as trial courts require unanimous jury recommendations to comply with last week's ruling.
But the Supreme Court majority did not address the issue of "severability," which would allow portions of the law that are not deficient to remain intact, Senior Assistant Attorney General Carol Dittmar wrote in the 11-page request filed Thursday.
"This omission unnecessarily invites continued litigation. The language leaves open the possibility that defense attorneys will assert that no valid death penalty law exists in Florida, demanding that trial judges strike notices of intent to pursue capital cases and refuse to impanel capital juries," she wrote.
However, "the state maintains that after severing the constitutional defect, current capital prosecutions should still be conducted as long as the trial courts ensure that the jury's final recommendation is unanimous," Dittmar continued.
The arguments "will no doubt be rejected by some trial courts and accepted by others," leading to more litigation in "an already overburdened system," Dittmar wrote.
"…This court's finding of a constitutional flaw will only generate confusion, absent some clarification as to trial court's authority to cure the legislative error," she argued.
But defense lawyers maintain that, a decade ago, the Supreme Court asked the Legislature to address the issue of unanimity. They say it's now the Legislature's job --- not the court's --- to fix the law.
"It's not clarification to ask the court to rewrite the statute," said Martin McClain, who has represented over 200 defendants facing the death penalty.
Like Bondi, legislative leaders and prosecutors --- who pushed for 10-2 jury recommendations in death-penalty cases over the repeated warnings of defense lawyers --- contend that the statute does not have to be changed immediately for prosecutions to move forward.
But an Ocala judge on Monday put on hold the penalty portion of a murder trial, saying the court needed direction from the Legislature before proceeding.
Arguing for the state in the request for clarification, Dittmar wrote that the flaw in the statute "is easy to fix" through "accurate jury instructions and simple interrogatories" and "does not require any substantive rewriting of the law."
But defense lawyers say that allowing trials to proceed without changing the statute could be even more problematic.
Relying on judges to craft jury instructions in different cases "is a situation that will cause havoc," said 5th Judicial Circuit Public Defender Mike Graves, whose office represents Kelvin Lee Coleman in the Ocala murder trial and who argued Coleman's case Monday. A jury late last week found Coleman guilty of two counts of first-degree murder.
"We literally could have dozens and dozens of different procedures, different jury instructions on the issue of death in individual cases. That, I think, would cause absolutely unnecessary complication in review," Graves said. "I don't for the life of me understand what their hurry is."
The state's death penalty has been in limbo since January, when the U.S. Supreme Court ruled that Florida's sentencing system was unconstitutional because it gave too much power to judges, instead of juries. Following that decision, the Florida Supreme Court indefinitely put on hold two executions, which are still pending.
Of the 31 states with the death penalty, Florida is one of just three --- including Alabama and Delaware --- that have not required unanimous jury recommendations for death to be imposed. Delaware's high court has halted that state's death penalty following the U.S. Supreme Court's decision in January in the Hurst case.
The Hurst ruling did not address the issue of unanimity, which became a flashpoint during this year's legislative session as Florida lawmakers sought to repair the state's death penalty sentencing process to comply with the U.S. Supreme Court decision.
Defense lawyers repeatedly told lawmakers that Florida's "outlier" status regarding unanimity jeopardizes the state's death penalty because the U.S. Supreme Court considers "evolving standards of decency" when considering the issue.
A Senate proposal originally required unanimous jury recommendations, but lawmakers ultimately struck a deal --- backed by Bondi and prosecutors --- in which at least 10 jurors were required to favor death for the sentence to be imposed.
"Refusing to make a steady, reasoned review of the situation is what led to the chaos our court system is now dealing with. Lives are literally at stake. Have patience. Take a breath,” Pete Mills, an assistant public defender in the 10th Judicial Circuit who is chairman of the Florida Public Defender Association's death penalty steering committee, said in a telephone interview Friday.
"If the Court attempts to fix this on their own, it could be a violation of the separation of powers recognized in our state's Constitution," Mills said. "They run the risk of misinterpreting what the Legislature will do. The Legislature might have bigger plans."
Incoming Senate President Joe Negron, a Stuart Republican who will take over as head of the chamber after the November elections, told The News Service of Florida this week that there was "no ambiguity" regarding the need for unanimous jury recommendations following the state Supreme Court opinions.
Negron, a lawyer, said that lawmakers could deal with the issue during next year's 60-day legislative session, which begins in March.
Bernie McCabe, the state attorney in the 6th Judicial Circuit in Pasco and Pinellas counties, said he believes prosecutors can move forward because the state Supreme Court, in the decisions last week, "has established the procedures necessary if you're going to seek the death penalty."
But McCabe also said that the attorney general's concern about clarification is valid.
"We have cases pending that need to be resolved, and there is perhaps confusion over the proper mechanism over how to resolve them," he said.
McCabe said he is trying two cases in which he is seeking the death penalty that are at a critical stage.
"I think we can go ahead. Others will perhaps disagree," he said. "I can see where it might be helpful if the Supreme Court just came out and said, OK, judges here's what you do, and go ahead and do it."