More than 200 Fla. death-row sentences ruled unconstitutional

By Rene Stutzman and Gal Tziperman Lotan

Orlando Sentinel

ORLANDO, Fla. — The Florida Supreme Court on Thursday ruled that more than half the people on Florida’s death row may be entitled to new sentencing hearings because of a U.S. Supreme Court ruling earlier this year that found the state’s death penalty unconstitutional.

The decision covers more than 200 inmates — and includes all of those who were sentenced after 2002 or whose appeals were not final by that year.

It is a legal decision that death row inmates, prosecutors, defense attorneys and the families of murder victims have awaited since January, when it became clear that Florida needed to rework its death penalty statute to bring it into line with the way other states handled those cases, specifically by requiring that juries — not judges — make the key findings required to impose a death sentence.

It also suggests that trial courts across Florida are about to be swamped by requests from death row inmates, asking to be resentenced and nearly all of them will be granted.

That would be a herculean task for trial judges, prosecutors and defense attorneys, said Orange-Osceola Public Defender Robert Wesley, who predicted the result would be a backlog that might take ten years to unjam.

Said former Circuit Judge O.H. Eaton Jr., “There’s going to be one hell of a lot of determinations as to whether these people are entitled to new penalty phases.”

They must individually petition the court, and prosecutors will have a chance to argue that their sentences were fair. If a judge sides with the inmate, a new jury would decide whether or not they should be sentenced to death. The decision must be unanimous.

If not, they would be sentenced to life in prison, Nunnelley said.

Thursday’s decision is the result of a U.S. Supreme Court ruling in January.

By a vote of 8-1, that court ruled that jurors — not a judge — must specifically identify why someone convicted of a capital crime should be put to death.

That case involved Timothy Lee Hurst, a Pensacola man convicted of murdering his boss at a Popeyes Fried Chicken restaurant in 1998 with a box cutter, then putting her body in a freezer.

The high court found that Florida’s death penalty statute was unconstitutional but left it to the Florida Supreme Court to decide whether the ruling should apply retroactively.

The state has not executed an inmate since then.

The state supreme court has issued several death penalty rulings in the interim. Some hinted that it would interpret the Hurst decision broadly but each stopped short of spelling it out.

On Thursday, that changed. The court laid it out: Every death penalty handed down in Florida since 2002 is unconstitutional. That’s 55 percent of the state’s death row population.

That’s because in 2002 the U.S. Supreme Court handed down a ruling — Ring v. Arizona — that generally said the same thing to the state of Arizona that the high court said to Florida in the Hurst decision 14 years later: Juries — not judges — must decide whether the death penalty is appropriate.

The Florida Legislature rewrote the death penalty statute last winter, giving juries more authority, and Gov. Rick Scott signed it into law on March 7, but in October, the Florida Supreme Court threw it out, saying it was unconstitutional because it failed to require a unanimous vote by jurors before the death penalty could be imposed.

As a consequence the state currently has no death penalty statute.

One of the factors the Florida Supreme Court had to evaluate was the level of disruption its ruling would create at trial courts around the state.

It concluded that including all 384 death row inmates would be too burdensome. That’s why justices limited it to those who were sentenced after the U.S. Supreme Court handed down the Ring decision in 2002.

Even so, it set the stage for what could become nearly 200 resentencings: mini-trials at which a new jury would listen to evidence then rule whether the defendant should be given the death penalty.

“Witnesses will have died. Memories will have failed. People will have disappeared,” Wesley said.

Eaton predicted that the overwhelming majority would qualify for resentencing. The most likely exceptions, he said, were those who insisted that the penalty phase of their trial be handled by a judge and not a jury and those whose juries voted 12-0 in favor of the death penalty.

Thursday’s ruling came in the case of Mark James Asay, who was convicted of killing two people, a black man and a transvestite, in Jacksonville in 1987.

He was scheduled to be executed March 17 but that was put on hold after the U.S. Supreme Court decision in the Hurst case.

On Thursday the Florida Supreme Court ruled that Asay was not entitled to a new sentencing hearing because his trial and initial round of appeals played out before 2002.

The state has executed one person who might have benefited from Thursday’s ruling: Oscar Ray Bolin Jr., who was put to death in January for murdering three young women in the Tampa Bay area in 1986.