Law doesn't require unanimous jury for death sentence

The jurors had started to talk it out.

Some thought Patrick Evans should die for what he did to his estranged wife and the man he found in her bedroom — shot him in the neck, then, as she cried for help, pulled the trigger again.

But in a Pinellas County jury room on Nov. 10, 2011, some could not agree that the murders deserved the death penalty. One woman cried, remembers juror Quentin Davis. He asked the rest to find out why, and remembers one man saying he didn't care, that it wouldn't change his mind.

Some didn't want to share their thoughts, says juror Phyllis McMahon. "They either weren't talking about it, or would hint maybe life in prison was okay, or they weren't saying at all. You could tell by body language, by silence, by facial expression."

So the jurors came up with a solution:

They would put their written votes in a cup.

Out they came: 9-3 for death in the wife's murder, 8-4 for the same in the death of the man.

There was no need for further debate.

They had what they needed.

In Florida, defendants must be found guilty by a unanimous vote, whether they steal a car or kill. But when it comes to recommending the ultimate punishment, a simple majority, 7-5, suffices.

This is the only state in America that allows such split juries to recommend death. And it matters. In 2012, almost two-thirds of the defendants sent to Florida's death row were ushered there even after some of the jurors believed they should be spared.

A Republican state senator is trying to pass legislation that would bring Florida in line with the rest of the nation, in which most states require a unanimous vote. Juror Davis hopes he succeeds.

He feels the cup vote was premature and thinks a unanimous requirement would have deepened the discussion.

"There would have been a lot more tension, arguing," he said. "I mean, it very well could have been a different outcome if we were able to talk about what we thought."

• • •

In 1972, after the U.S. Supreme Court deemed the death penalty unconstitutional, Florida rushed to bring it back.

That meant writing a new law that would calm concerns about the arbitrary way the punishment had been applied.

So state lawmakers convened a four-day special session to discuss a new mechanism. Maybe it would be an automatic death penalty trigger every time a jury found someone guilty of certain crimes; maybe a three-judge panel would pass the sentence.

Ultimately, the Legislature decided:

The trial would be split into two phases, verdict and penalty. The jury would have to find guilt unanimously in the first deliberation, but in the second, could recommend death by a majority vote. A judge would make the final decision, with the power to agree or disagree with the jury. To this day, that override exists, with judges charged to give "great weight" to juror votes.

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Not much was made back then of the simple majority requirement. But in 2005, the Florida Supreme Court urged the state to change it, citing research that behavior in unanimous jury deliberations is more "thorough and grave."

The following year, the American Bar Association issued a 462-page assessment echoing the call for change. It cited a study that showed Florida's juries arrived at death penalties more hurriedly than those in any other state it examined.

Determining whether someone should be put to death is the most profound choice an ordinary citizen could be asked to make.

Yet out of 13 states, Florida had the highest percentage of recommendations reached in less than an hour and the lowest percentage of recommendations reached in more than three hours. It had the lowest percentage of deliberations in which jurors asked to review testimony or transcripts, and the highest percentage of jurors who said their sentence was decided in one vote.

Yet majority is still the law in Florida.

It preceded the sentences of 11 out of 18 Florida defendants sent to death row in 2012.

Forty-two jurors of 132 — almost a third — voted to spare the lives of those defendants. The Tampa Bay Times sought to speak with them, and every other juror who contributed to a majority vote that led to the death penalty in 2012.

Twelve jurors responded from five Florida counties. This jury of jurors allowed the Times to dissect their deliberations, both the unanimous guilt verdict and the majority death recommendation, and gave their opinions on the law.

Some believe a simple majority vote is fine for the penalty. Some think it should change. Some feel that if unanimity had been required when they deliberated, it could have meant the difference between life and death.

Many agree that a unanimous requirement, at least, would have kept them talking.

• • •

December 2011.

Sumter County.

A jury sat in a trial for days, hearing about a 26-year-old man found beside a road in 1987, hog-tied and stomped to death.

The case had gone cold until detectives ran a DNA test on a cigarette butt found in the victim's stolen car. It led to Indiana prisoner Carl Dausch.

Dausch's defense attorney admitted the defendant had been in the victim's car, but said he got a ride from a man who stole it.

Jurors found themselves asking questions when they finally reached deliberation.

Was Dausch just a passenger? Or a lone killer?

In an initial vote, only a simple majority was convinced he did it. But the guilt phase required a unanimous vote.

They kept going.

"We really started getting into stuff," said juror Ronald Reedy. "It became, let's really talk about this, because we're about to drastically change someone's life. …We hashed and rehashed and went over things and did what we had to do."

At some point, a juror who had been quiet spoke up.

He noticed that the trash in the passenger's seat of the car had not been disturbed, "coffee cups and things like this," Reedy said. "If there had been two people in the car, that would have been stepped on. That was the deciding factor that there was one person involved."

"You almost had to say, this guy is lying," said juror Bari McKinney. "So once we were all in agreement — and that probably took the longest — I think everyone walked out feeling that that was the 100 percent right choice."

Total time it took to come to a unanimous guilt verdict:

Almost five hours.

The time it took the same jury to arrive at an 8-4 death recommendation:

50 minutes.

• • •

When Sen. Thad Altman, R-Melbourne, first proposed a bill to require a unanimous jury more than a year ago, he did so based on personal feeling: "If you're going to find somebody guilty of a crime and it must be unanimous, it's only logical that the sentencing portion of the trial be unanimous as well. … We must value life as a society."

But in a legislative committee hearing last week, he said he came to learn that unanimity wasn't just a good idea, it was a staple of justice, deeply seeded in common law for hundreds of years and accepted as a standard in almost every state where the death penalty is allowed.

Florida prosecutors all the way up to Attorney General Pam Bondi oppose a change. Pensacola-based State Attorney William Eddins, president of the Florida Prosecuting Attorneys Association, spoke out against the bill at a hearing last week, citing some common counterpoints:

• Ted Bundy and Aileen Wuornos, two of the most notorious serial killers in Florida history, were sentenced to death after non-unanimous jury recommendations. "If this law passes, those cases would have been life sentences," he said. "Only 20 percent of the death penalty recommendations in Florida are unanimous. So if you change this law … it seems to me that you're eliminating 80 percent of the death sentences in Florida."

• In Florida, juries do not sentence, judges do, and have the power to override jury recommendations. "There are many safeguards built into the laws that presently exist," Eddins said. "We do not need more."

• Even though the bill is written to apply to future sentences, that wouldn't stop current condemned inmates from filing appeals. "You can count on a flood of litigation if this law is changed," Eddins said.

There is evidence to contradict some of those arguments.

A judge overriding a jury's recommendation of death to life? According to a 2011 study, it happens only two or three times per year. Much more often than not, judges side with juries.

Unanimity would drastically decrease death sentences? Not necessarily.

Texas requires a unanimous decision, and in 2012, that state put to death 15 prisoners — the most in the country and a tally that made up more than a third of all executions nationwide.

In 2001, a state commission convened to try to figure out ways to decrease the workload of the Florida Supreme Court. One thing they considered was requiring unanimity, or at least a super majority, to decrease the number of cases judges would have to review.

In their argument against requiring unanimity, representatives of the Attorney General's Office and the Florida Prosecuting Attorney's Association gave the exact opposite of the current argument. According to a staff analysis, they said the number of death sentences would not decrease, because juries that believed it was an appropriate sentence would reach a required vote.

Pinellas-Pasco State Attorney Bernie McCabe opposes changing the law. He says he would have supported a unanimous requirement if it had been that way all along, but is concerned about what changing the law would do to cases that have already been decided. What would that do to victims' families?

"I would hate to reopen those wounds," he said.

He doesn't think the requirement itself would drastically decrease the number of death sentences.

Prosecutors would just change the way they select juries.

"When you're selecting a jury, you might leave somebody on the jury who you felt was particularly weak on the death penalty, but thought they might be strong on the facts, because you knew you only had to have a majority vote," he said. A unanimous requirement, he said, would make him want to weed out those weak on the death penalty.

Jurors, too, would think differently about the way they vote.

"A substantial number of cases would have turned out the same way," said McCabe, "because the majority vote just gives somebody a simple way to say, " 'It's going to happen. I'm not going to vote for it.' "

• • •

February 2012.

Holmes County.

The jury had found 34-year-old Johnny Calhoun guilty in a case local media called one of the most sadistic in recent history.

He had bound a store clerk with tape, stuffed her in the trunk of her car and made her wait there for hours. Then, he burned her alive.

Before jurors began their death penalty deliberation, the killer's mother made a tearful plea to the jury to spare her son's life. It stuck with juror Mary Jo Craft.

"That was the bad part,'' she said. "It was so fresh in my mind, the mother begging not to kill her son. … I just could not say kill him. That was just not in my vocabulary at that moment. I wish we would have had more time, and then I probably would have said it."

But knowing she was in the minority — 9-3 — helped her vote against the death penalty.

Her fellow juror Philip Brown recognized what happened. He said that when people saw that death was "locked down," they "flipped" their decision so that they wouldn't have it on their conscience.

A requirement for unanimity would have heated things up, he said. "That answer wouldn't have flown for me. You're worried about your conscience here? … I don't think we would've left that room until we had just exhausted ourselves in trying to turn those other three people around."

It would have worked, at least, on Craft. "If it had been 12-0, would I have voted different? I would've said yes, because of the horrible thing that he did."

But she doesn't want the law to change.

"I believe it should stay like it is, because it gives a person like me the opportunity that they can still give him the death penalty and some people have a clear conscience," she said. "I think that's a good thing. I don't think they need to change it. Why do they want to change it?"

Times researcher John Martin contributed to this report. Alexandra Zayas can be reached at azayas@tampabay.com or (813) 226-3354.