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Death penalty fix passes, likely to face challenge

New law would require 10 of 12 jurors to recommend execution

TALLAHASSEE, Fla. – State lawmakers Tuesday signed off on a measure intended to cure Florida's death penalty system, but defense lawyers say the proposed fix is flawed and will be challenged in court.

Gov. Rick Scott's aides said he will sign the bill, approved by the Senate in a 35-5 vote after earlier passing the House.

The legislation was prompted by a Jan. 12 U.S. Supreme Court ruling, in a case known as Hurst v. Florida, that struck down the state's death-penalty sentencing system as unconstitutional. The decision -- which effectively put the death penalty on hold in Florida -- came on the opening day of the legislative session, sending lawmakers scurrying to craft a remedy before the session ends March 11.

The ruling dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it focused on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determinations of such aggravating circumstances must be made by juries, not judges.

The 8-1 decision found that Florida's system of giving judges -- and not juries -- the power to impose death sentences is an unconstitutional violation of defendants' Sixth Amendment right to trial by jury.

While the Supreme Court ruling focused on aggravating circumstances, much of the legislative debate centered on another issue dealing with jury recommendations about whether defendants should be put to death.

The legislation (HB 7101) on its way to Scott would require at least 10 jurors to recommend death for the penalty to be imposed -- a compromise between the House and the Senate, which had originally favored unanimous jury recommendations. Prosecutors, including Attorney General Pam Bondi, pushed for the 10-2 recommendation, arguing that unanimity would allow a single juror to hijack the process.

Of the 31 states with the death penalty, Florida is one of only three that do not require unanimous jury recommendations for death to be imposed. The others -- Alabama and Delaware -- require at least 10 jurors to recommend death.

The Hurst ruling did not specifically address unanimous jury recommendations to judges, a process that happens after jurors determine whether sufficient aggravating factors exist. Lawmakers considered requiring unanimity, 10-2 or 9-3 recommendations. In the past, majorities of juries have been able to recommend death.

Though the bill passed overwhelmingly in the Senate and House, a key part of the measure is expected to prompt a legal challenge.

The bill would require juries to unanimously determine "the existence of at least one aggravating factor" before defendants could be eligible for death sentences. Florida law lists 16 aggravating circumstances --- such as whether the crime was committed for pecuniary gain or if the victim was under 12 years of age --- that juries could consider.

Defense lawyers argue that the list is so broad that virtually any murder could be considered a capital crime.

Allowing a single aggravating circumstance -- even with a unanimous jury finding on the aggravators, as the proposed law would require -- to determine whether a defendant is death-penalty eligible could run afoul of the Supreme Court's consistent view that capital punishment should be reserved for a narrow class of offenders who commit the worst crimes, the lawyers contend.

Because of that, the proposed law could violate Eighth Amendment protections against cruel or unusual punishment, Rex Dimmig, public defender in the 10th Judicial Circuit, said in a telephone interview Thursday.

In attempting to cure the concerns raised in the Hurst decision, lawmakers have "completely changed the death penalty scheme that's to be used in Florida, which severely implicates Eighth Amendment challenges to the statute," Dimmig said.

"In the past, the requirement on the jury was that they find sufficient aggravating factors to support the death penalty, and that the mitigating circumstances did not outweigh the aggravating factors. The new bill says that someone is death eligible if the jury finds unanimously that a single aggravating factor exists. So the class of defendants eligible for the death penalty is greatly increased, whereas the U.S. Supreme Court has made it very clear, under Eighth Amendment analysis, that the purpose of death penalty statutes must be to narrow the class of eligible defendants," he said.

Scott could receive the bill as early as next week, and is expected to sign it immediately.

"Absolutely, it will be challenged on the Eight Amendment issue and, because of the lack of unanimity on the death recommendation, it will also be challenged on Sixth Amendment grounds. So it will be a two-pronged attack," Dimmig predicted.

But Sen. Rob Bradley, a former prosecutor who worked on the legislation, said lawsuits over the death-penalty changes were expected.

"Regardless of how the bill ended up being drafted, there were going to be legal challenges to the bill. Even if the bill provided for a unanimous jury verdict, there would be legal challenges to the bill. That's the nature of the death penalty in the 21st century," Bradley, R-Fleming Island, said.

Local attorney shares where he thinks Florida's death penalty cases are headed next

The final vote on the measure came one day after the state Supreme Court delayed the March 17 execution of a Jacksonville man who has been on death row for more than a quarter century for a double murder.

A local attorney spoke with News4Jax's Francesca Amiker. He broke down what the new law will force the courts to do.

News4Jax also spoke with the family of the convicted killer and his victim. When Amiker spoke with family members Thursday night, their biggest question is when will Mark Asay, 51, be executed.

"I couldn't believe it. I almost collapsed when they showed it on the news that my father was killed," said Vitorio Robinson.

Robinson and his uncle said they’ve been frustrated for nearly 30 years as they wait for justice after their loved one, Robert Lee Booker, was shot and killed as he walked home from work in 1987.

"He was a very good person, he was (a) very hard-working person," Frank Booker said. "He had a family and he worked every day that he could."

According to state records, just minutes after Robert Booker's killing, Asay drove into downtown where he shot and killed another man. He was convicted for both murders and sentenced to death row.

But after a decision made by the state Legislature this week, his execution date of March 17 has been delayed. In January, the Supreme Court said Florida’s death penalty procedures were unconstitutional.

"The problem in our case was, the jury could recommend life or death, but the judge had the ultimate say and the U.S. Supreme Court said that's not OK," local attorney Randy Reep said.

Reep said with the new law, the jury must recommend the death penalty with a vote of at least 10 to 2, but that's not all.

"They also have to find that one of the aggravating factors that led to (the) death penalty or at least on one of them they must be unanimous," Reep said.

Until the Florida court system gets new procedures in place, Reep said he doesn't believe anyone will be executed in the state for a number of years, which is news that gives the family of Asay hope as it seeks a new hearing and trial.

"He's sorry for whatever they think he did, and I think that if he was able to come out from under this, he's a better man for it," said Gloria Dean, Asay's sister. "Because he's a good man and he served 20-30 years in there and he doesn't want to be there anymore."