Florida Supreme Court rules death penalty juries must be unanimous

An unidentified "death row" inmate in "Q" wing of Florida State Prison, at Starke views the photographer using a hand mirror during a rare escorted media visit. (AP Photo/Mark Foley, File, 1989)
An unidentified "death row" inmate in "Q" wing of Florida State Prison, at Starke views the photographer using a hand mirror during a rare escorted media visit. (AP Photo/Mark Foley, File, 1989)
Published Oct. 14, 2016

The state Supreme Court on Friday tossed out the way death sentences are imposed in Florida, forcing the Legislature to rewrite the law to require a unanimous jury decision.

"We conclude that the Sixth Amendment right to a trial by jury mandates that under Florida's capital sentencing scheme, the jury—not the judge— must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty,'' the court wrote in a 5-2 ruling, with Justices Charles Canady and Ricky Polston dissenting.

Florida now joins a majority of states that require unanimous verdicts in death penalty cases, said Pinellas-Pasco Public Defender Bob Dillinger.

"Finally, finally," he said. "The Legislature would not listen to the courts. They've been warned over and over about being the outlier."

The court did not address whether its decision should apply retroactively to other convicts already on death row. But in a related ruling, justices barred use of the current statute in pending criminal cases where jurors have not yet recommended the death sentence.

Research shows that jurors are less likely to thoroughly consider a case when only a majority vote is required, said Susan Rozelle, criminal law professor at Stetson University College of Law.

"There isn't the kind of close examination of the evidence, the kind of deep discussion that really is warranted when someone's life is on the line," she said.

The decision by Florida's justices was in response to a January finding by the U.S. Supreme Court that invalidated the state's death penalty law. The old law required only a simple majority and it allowed a judge to overrule a jury verdict and impose a death sentence. In that case, known as Hurst vs. Florida, the court said Florida's system violated a defendant's right to a jury trial.

State legislators responded in March, rewriting the law to require at least a 10-2 death vote. Jurors had to agree unanimously on the existence of at least one aggravating factor before a vote could take place.

"If we had done nothing then there would not have been a law that the Supreme Court of Florida could pass judgment on," said Sen. Rob Bradley, R-Fleming Island, a supporter of unanimous verdicts who helped broker a compromise to pass the bill. "Now we have direction."

Rep. Darryl Rouson of St. Petersburg, who voted against the March law, said he was "elated" to hear of the court's decision Friday.

"If it's unanimous guilty, then why not let it be a unanimous death recommendation?" he said. "The other side argues that the victim of the murder, the victim's families, deserve retribution, and that may be appropriate in some instances, but shouldn't we get the process right?"

ONLY IN FLORIDA: How the nation's lowest bar for the death penalty has shaped death row

The debate goes back more than a decade, when the Florida Supreme Court urged the Legislature to rewrite the state's death penalty statute to require jury unanimity.

"Many never could reconcile the fact that the Legislature failed to respond," said Mark Schlakman, a Florida State University law professor who was on the American Bar Association's Death Penalty Assessment Team.

"The Legislature at some point will need to conform to this opinion," Schlakman said. "There is no ambiguity as to what Florida law now requires."

Capital punishment has been on hold in Florida since Jan. 12, when the U.S. Supreme Court ruled in the Hurst case.

Timothy Lee Hurst was convicted of the 1998 murder of Cynthia Lee Harrison, a co-worker at a restaurant in Escambia County. He was sentenced to death in 2000 and then resentenced in 2012 by a jury vote of 7 to 5.

Florida has 385 inmates on death row. It is unclear how many prisoners could be entitled to relief as a result of the Hurst decision..

Attorney General Pam Bondi's office has said that as many as 43 death row inmates could get life sentences without parole or new sentencing hearings. Those 43 inmates are those who are entitled to automatic post-Hurst reviews of their cases under the state Constitution.

Of those cases currently before the court, Bondi's office argued, death sentences should be carried out.

Howard Simon of the ACLU of Florida called such decisions a "moral issue" and said it would be "unconscionable" to put someone to death after sentencing by a less than unanimous jury.

The retroactivity issue will likely be decided by two other cases — Lambrix vs. Florida and Asay vs. Florida — still pending before the state Supreme Court.

"I think this is a good opportunity for the state of Florida to sit down and rethink whether or not the death penalty is something we want to continue to pursue," said Hillsborough County Public Defender Julianne Holt.

Holt, whose office is handling 19 pending death penalty cases, said a few are very close to being ready for trial. However, it is difficult for any of them to move forward.

"At this point, we do not believe there is a procedure in place to pursue the death penalty," Holt said.

Bjorn Brunvand, a Clearwater criminal defense attorney representing some death row inmates, said he is against the death penalty, but "if we're going to have it this is certainly a better way than the hybrid scheme that we tried to do."

"Fiscally, it would make a lot more sense just to convert all those sentences to life," he added. "The expense of having new jury resentencing hearings will be very high because basically it's starting from scratch."

Contact Dan Sullivan at and Laura C. Morel at