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Decision muddles death cases in Florida

A month after the U.S. Supreme Court overturned Arizona's death penalty law, the ripples are being felt in trial courts across Florida.

In Tallahassee last week, a judge delayed a first-degree murder trial because of uncertainty about how the decision affects Florida's death penalty law.

In Tampa, a judge came up with new instructions for a jury in a murder case.

And Pinellas-Pasco State Attorney Bernie McCabe says he will consider temporarily separating Florida's two-phase capital trials _ one phase for judging guilt or innocence and a second for deciding a sentence of life in prison or death.

"If the need arises, we might suggest putting off the penalty phase of the trial," he said, "but I don't see any reason to hold off on the guilt phase."

The U.S. Supreme Court ruled in the Arizona case last month that only juries, not judges, can impose the death penalty. The court struck down the Arizona law, which required judges to decide the sentences.

In Florida's trial courts, jurors recommend whether to impose the death penalty but judges have the final word. The U.S. Supreme Court ruling has triggered questions about whether that practice also is in jeopardy: How does the Arizona case apply to Florida? What do Florida courts, defense lawyers and prosecutors do until the answer is clear?

"We're going to continue to seek the death penalty in the appropriate cases until otherwise instructed" by the Florida Supreme Court, Hillsborough State Attorney Mark Ober said.

McCabe called it "a stretch" to say the U.S. Supreme Court's opinion in Ring vs. Arizona affects the Florida statute.

But defense attorneys across the state are arguing that the Arizona opinion means Florida's statute also is unconstitutional. They are asking for delays in death cases until the courts decide the issue rather than risk that death sentences will be overturned, which would force the cases to be retried.

Last week in Tallahassee, a circuit judge agreed to postpone the first-degree murder trial of Caed Brawner after defense attorney Melodee Smith made that argument.

"It wouldn't be a good idea to pay for two trials, given that this issue is being utterly disputed as we speak," Smith said, praising the judge's ruling. "We no longer have a trial date. That's almost unheard of in a death penalty case."

Even in cases where defense lawyers have met with less success, Arizona's ruling is keenly felt.

At the murder trial of John Huggins in a Hillsborough courtroom this week, circuit Judge Belvin Perry ruled the state death-penalty statute was constitutional.

But he told prospective jurors they would decide whether the defendant received the death penalty. That is a striking change from what jurors normally hear, which is that their sentence is a "recommendation" to a judge.

"It may really be assuring a third trial on this issue," said Orange-Osceola public defender Robert Wesley of the Huggins case, which was moved to Tampa after unsuccessful attempts to seat a jury in Osceola County.

"We're just all up in the air. I do hope we all live long enough to see how this bears out, because it will be a matter of years."

Buddy Jacobs, a lawyer for the Florida Prosecuting Attorneys Association, said the U.S. Supreme Court's decision to lift stays in the planned Florida executions of Linroy Bottoson and Amos King after the court issued its Arizona opinion suggests the court is not concerned about Florida's statute.

Based on discussions between the state's 20 elected state attorneys, Jacobs said, "I think overall, everyone feels the Florida system is in good shape."

But last week, the Florida Supreme Court ordered stays on the imminent executions of Bottoson and King in order to weigh the U.S. Supreme Court's ruling. The state Supreme Court will hear arguments on the constitutionality of the death penalty on Aug. 21.

Julianne Holt, Hillsborough's elected public defender, said she asked Ober to delay the Christopher Bachmann murder trial in February while the U.S. Supreme Court decided the Arizona case.

Ober refused. Bachmann was convicted, and while a prosecutor argued for the death penalty, a jury gave him life in prison.

Holt said she hasn't asked Ober again to delay death penalty cases. But she said continuing to hold murder trials before the fate of Florida's statute is decided risks spending more public money to retry cases that may be overturned, as well as emotionally affecting the victims of the crimes.

"When you say to victims, "Let's bring you trial closure, but this is an appellate issue,' " Holt said, "to me that's not being considerate."

_ Times researched Caryn Baird contributed to this report. Christopher Goffard can be reached at (813) 226-3337 or goffardsptimes.com.

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