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Florida's death penalty system under scrutiny again
Thu Nov 24, 2011 8:18pm
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Florida's death penalty system under scrutiny again

By Steve Bousquet, Times Columnist
In Print: Tuesday, November 22, 2011


On the subject of the death penalty, Florida has a couple of distinctions that to some are deeply disturbing.

The state leads the United States in reversals of death sentences with 23. It's also the only state in which a trial court jury can recommend a death sentence by simple majority.

Those facts have prompted state Sen. Thad Altman to propose changing the law to require that a jury recommendation of death must be by all 12 jurors. The final sentencing decision rests with the trial judge, who has already instructed the jury that its recommendation carries great weight.

A judge may overrule a jury recommendation of death and sentence a criminal to life, but it is very rare.

Altman is no wild-eyed liberal. The Space Coast Republican 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.

"Life is far too precious," Altman said at a recent death penalty symposium at Florida State University's law school. "It's the least that we can ask that before we give the ultimate sentence to someone that we require a unanimous verdict."

The idea has been around a long time but it has never gone far in a Legislature where members are fearful of being labeled soft on crime by opponents. Altman's 2011 version never got a hearing in the Capitol, and the new version has been sent to a Judiciary committee headed by Sen. Anitere Flores, R-Miami.

Altman's bill (SB 772) also requires that each factor used to justify a recommendation of death, such as whether the crime was especially cruel, must also be unanimous. Florida is the only state in which the findings of aggravating circumstances can be by a simply majority with no unanimity required.

His proposal would only apply to offenses committed on or after Oct. 1, 2012. In other words, an inmate whose jury voted 7-5 to recommend a death sentence two decades ago could not seek an appeal on that basis alone, which would ease the concerns by a Tampa Bay prosecutor.

"If there were some way to ensure that it would not impact those cases that were already adjudicated, it wouldn't bother me at all," said Bernie McCabe, state attorney for Pinellas and Pasco counties.

Altman's allies in his uphill fight include Raoul Cantero, a former Florida Supreme Court justice appointed by former Gov. Jeb Bush who spent years reviewing death penalty cases.

As part of a ruling in a Pasco County case, State vs. Steele, Cantero wrote "the need for legislative action" on the issue.

"The Legislature should revisit the statute to require some unanimity in the jury's recommendations," Cantero wrote six years ago.

Legislators listen to the views of prosecutors, and some of them are poised to oppose any change in law if Altman's bill shows any sign of life.

To State Attorney Brad King of Ocala, requiring a unanimous jury recommendation of death would give one juror veto power over the other 11 jurors, which King described as "the ultimate example of arbitrary and capricious."

He pointed out that the jury recommendation of death was by a 10-2 vote in the case of John Couey, the man convicted in 2007 of the abduction, rape and murder of 9-year-old Jessica Lunsford of Homosassa. Couey died in prison before his sentence could be carried out.

Only last week, a jury in Hillsborough County voted 8-4 to recommend death for Humberto Delgado Jr. for the killing of Tampa police Cpl. Mike Roberts.

"Why mess with a system that works?" asks King, who closely monitors criminal justice issues in Tallahassee.

Cantero rejects such logic, noting that other states that execute more inmates than Florida require a 12-0 jury recommendation of death.

"Look at Texas and Georgia. They require unanimity," Cantero said in an interview Monday. "It's just not borne out by the evidence out there."

Cantero, now in private practice in Miami, said: "When you have one state with a system of due process that's different from any other state, it kind of puts a focus on that state."

Steve Bousquet can be reached at bousquet@sptimes.com.

http://www.tampabay.com/news/politics/legislature/floridas-death-penalty-system-under-scrutiny-8212-again/1202846

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