TAMPA — When a judge decides today between life and death for the convicted killer of a Tampa police corporal, he will look out on a roomful of blue uniforms — all fellow officers waiting for the judge to impose the ultimate punishment.
The view shouldn't amount to "a hill of beans," death penalty experts say. The blue uniforms should have no more bearing on the decision than the red jail jumpsuit worn by Humberto Delgado, the killer of Tampa police Cpl. Mike Roberts in 2009.
The possibility of public or political pressure brought against elected judges is always there. But Emmett Battles, the circuit judge who will decide, has made unpopular rulings before — including his decision to spare hit-and-run driver Jennifer Porter prison after she killed two children in 2004. He was re-elected without opposition six years later.
This time, many legal observers — but not all — believe Delgado will not die for his crime, that he does not meet the death penalty standard of "worst of the worst." If Battles gives him death, they say, it likely won't stand up.
"If he imposes the death sentence, I wouldn't be surprised at all if the state Supreme Court reverses it," says Robert Batey, professor of criminal law at the Stetson University College of Law in Gulfport.
"There's a strong argument that it is unconstitutional."
Rick Terrana, a death-case attorney in Tampa, says there's also a strong argument that the death penalty is a good possibility. "I think this judge can impose the death penalty without appellate scrutiny," Terrana says. "And if he can, he will."
Predictions of a life sentence rather than death are partly based on the evidence and partly on Florida's stature as a death penalty "outlier."
Florida death penalty rules are looser than anywhere else in the country. The state's own Supreme Court has urged the Legislature to reform them, to bring them in line with other states. Lawmakers so far have refused.
Delgado himself is another argument against a death sentence, the experts say. Psychiatrists and psychologists for both the state and defense nearly unanimously agreed that Delgado experienced an "extreme mental disturbance" on the night he killed Roberts. Under the law, that's a "mitigating factor" that could excuse him from the death penalty. Veteran death penalty attorney Lyann Goudie says she has never seen a more powerful mitigating factor than Delgado's documented lifelong mental illness, his previous service as a policeman in the Virgin Islands and his delusional state at the time of the killing.
In the penalty phase of Delgado's trial last year, prosecutors presented the jury two aggravating factors: one that he killed a police officer who was performing his duties, the other that he committed aggravated battery on another officer who responded to the scene.
Missing in the state's argument was the most prevalent aggravating factor in death cases — that the killing was "especially heinous, atrocious, cruel, or depraved."
Weighed against that was the mitigating factor that Delgado, homeless and without his pyschotropic medications, had an "extreme mental disturbance" when he killed Roberts.
The jury recommended death by an 8-4 vote.
Attorney Goudie said the vote surprised her. But under Florida law, a jury is not required to explain its vote or cite the aggravating factor it most preferred. Each juror can choose his or her own preferred aggravator.
The way Florida juries consider those factors was ruled unconstitutional by a U.S. district judge last year, but the ruling is under appeal. Florida is the only state in which a jury can recommend a death sentence by simple majority.
"We go the furthest in not requiring unanimity," says Batey, the Stetson professor.
He also noted that Florida leads the United States in reversals of death sentences, with 23.
For the second year, state Sen. Thad Altman, R-Viera, has filed a bill to require that a jury recommendation of death must be by all 12 jurors. It also would require juries to agree unanimously on aggravating factors. Altman calls it "inconsistent and illogical" that the law requires a unanimous verdict of guilt to convict somebody of a crime, but not to recommend that someone be put to death. The bill has long odds of passage.
Nevertheless, attorney Terrana says the judge is required by law to give great weight to the jury's vote — even an 8-4 vote. "If it were 7-5, he pretty much might have to go with life, but 8-4 is not close enough to negate a death penalty. Only under rare circumstances can he, or should he, overrule a jury's recommendation." Terrana says the judge also can consider the harm done to Roberts' widow and children, even if it is not an aggravating factor.
Today, Judge Battles will make the call alone. That's how it was with Jennifer Porter.
In March 2004, Porter struck four children on a dark street as they returned home from playing at a local community center. Two children died, and two were seriously injured. If Porter had stayed at the scene, she likely would not have faced charges. Instead, she drove away and called an attorney instead of authorities.
Prosecutors wanted prison time for Porter, who pleaded guilty to leaving the scene of a crash involving a death. But after hearing evidence about the psychiatric trauma she had endured immediately after the accident, Battles sentenced her to two years of house arrest and three years of probation. His decision was widely criticized.
Today's decision could again be criticized. But legal experts say only the law matters. "He'll have to back up his findings with evidence," says retired Hillsborough Circuit Judge J. Rogers Padgett.
"It's not easy."
John Barry can be reached at [email protected]