Justices review the way Florida decides death penalty cases

WASHINGTON (AP) – Florida’s unique system for imposing the death penalty found a skeptical audience at the Supreme Court on Tuesday as some justices questioned whether the state gives judges too much power to decide capital sentences.

The court considered an appeal from death row inmate Timothy Lee Hurst, who was convicted in the 1998 stabbing death of his manager at a Popeyes restaurant in Pensacola. A jury divided 7-5 in favor of the death penalty, and a judge then imposed the sentence.

Hurst’s lawyer, former U.S. solicitor general Seth Waxman, argued that Florida’s system is unconstitutional because juries play only an advisory role in recommending a death sentence.

“Under Florida law, Timothy Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death,” Waxman said.

The state requires juries to weigh aggravating factors against other factors, such as a troubled childhood, that might lead them to spare defendants from the death penalty. But the juries have no binding effect on the judge, who weighs those factors independently and can reach a different decision.

Florida is also the only state in which juries don’t have to reach a unanimous verdict to recommend a death sentence or agree on which aggravating factors exist. Waxman said the system goes against a 2002 Supreme Court ruling that says factual findings supporting the death penalty must be made by a jury, not a judge.

In Hurst’s case, prosecutors asked the jury to find two aggravating factors: the murder was committed during a robbery and it was “especially heinous, atrocious or cruel.” But the jury was not required to say how it voted on each factor. Waxman said it’s possible that only four jurors agreed with one, while three agreed with the other.

Justice Anthony Kennedy seemed concerned that a jury could base its decision on one aggravating factor, but a judge could then rely on a different factor that the jury never considered.

“Theoretically, this could happen,” Kennedy said.

Justice Elena Kagan appeared troubled that the entire appeals process in Florida focuses only on the judge’s findings, suggesting the judge makes “the crucial death penalty eligibility determination.”

Florida Solicitor General Allen Winsor said Florida’s system may leave ultimate responsibility to the judge, but it lets the jury decide whether there are facts making a defendant eligible for the death penalty in the first place.

Winsor argued the system gives defendants a “judicial backstop” in having both jury and judge find at least one aggravating factor warranting a death sentence.

Chief Justice John Roberts said in a typical trial, jurors don’t have to agree on a particular basis for the verdict, so there could be “12 different reasons” to find a defendant guilty.

Justice Antonin Scalia noted that if a crime can be satisfied by various elements, jurors don’t have to agree on the same one. But later, Scalia suggested jurors might act differently if they knew their determination of aggravating factors was final, and not subject to a judge’s review. He said it’s “a lot more responsibility” for jurors if they know they have the final word.