In a case that may very well decide my own fate as well as that of
many others, on Friday, October 14, 2016, the Florida Supreme Court
issued its long anticipated decision in Timothy Hurst v State of
Florida, which questioned whether the manner in which death sentences
have been imposed for the past 40 years was illegal in light of an
earlier decision this year by the United States Supreme Court in Hurst v
Florida, 136 S.Ct 616 (2016) that itself held that “Florida’s capital
sentencing scheme is unconstitutional to the extend it failed to require
the jury, rather than the judge, to find the facts necessary to impose
the death sentence — Florida’s process that allowed merely for a jury’s
advisory recommendation for death was not enough.” Hurst v Florida, 136S
S.Ct., 619
In Friday’s decision, the Florida Supreme
Court unequivocally held that consistent with both the U.S. Supreme
Court’s earlier decision as well as long recognized constitutional
principles under Florida law, a sentence of death can only be
constitutionally imposed if the jury unanimously agrees on every element
relevant to authorizing a death sentence. Bottom line, the Florida
Supreme Court stated that:
“Before the trial judge may
consider imposing a sentence of death, the jury in a capital case must
unanimously and expressly find all the aggravating factors that were
proven beyond a reasonable doubt, unanimously find that the aggravating
factors are sufficient to impose death, unanimously find that the
aggravating factors outweigh the mitigating circumstances, and
unanimously recommend a sentence of death. We equally emphasize that by
so holding, we do not intend to diminish or impair the jury’s right to
recommend a sentence of life even if it finds aggravating factors were
proven, were sufficient to impose death, and that they outweigh the
mitigating circumstances… Nor do we intend by our decision to eliminate
the right of the trial court, even upon receiving a unanimous
recommendation for death, to impose a sentence of life.”
What
this decision effectively means is that every person who has been
sentenced to death in Florida — and every person who has already been
executed in the state of Florida — since 1974 was illegally sentenced to
death.
But as I’ve often said and those familiar with
the legal system will agree, it’s not about administering justice or any
other novel ideas of fairness… it’s really about the “politics of
death” and perpetuating society’s seemingly unquenchable thirst for
vengeance.
For that reason, even with the now
unequivocal recognition that all prior death sentences — including my
own — are illegal, already the State of Florida is aggressively pushing
for the courts to now hold that this landmark decision cannot be
retroactively applied to the older cases and even if retroactively
applied, any error in illegally imposing these sentences of death was
and is “harmless” as based upon the court’s subsequent analysis, a death
sentence would have been imposed anyway… they call this “harmless
error.”
In
the coming weeks, the Florida Supreme Court will rule in my own case
whether this Hurst decision will apply “retroactively” to older cases
that have already been denied on initial appeal. If the court does find
that last week’s decision in Hurst must be retroactively applied to not
only my own case, but the majority of Florida’s other 390 cases
currently under a sentence of death, then under this Hurst decision the
court will look at the individual circumstances of each case to
determine whether in that particular case the illegally imposed sentence
of death was “harmless” and the State of Florida can proceed to kill us
anyway.
As I said, it’s not about justice - it’s about
the politics of death. But it begs the question… if, as in my own case
and the majority of others, even without the requirement of jury
unanimity, the juries that decided my fate in 1984 only recommended
imposing death by non-unanimous votes of 8 to 4 and 10 to 2, with
neither recommendation meeting the now constitutional mandated
requirement of a unanimous vote.
Under this recently
announced rule of law, from this day forward the only way anyone can be
condemned to death is if all 12 jurors agree. If even one juror refuses
to recommend death for any reason at all —- and they are not required to
provide any reason — then “death” cannot be imposed and that person
must be sentenced to “life.”
So, how can they now say
that they recognize that I and many others have been illegally sentenced
to death — that the fact that our death sentences were not unanimous
renders them illegal — but just as long as they can weasel out of it by
subjectively deciding that any error in illegally sentencing us to death
was harmless, they can kill us anyway?
At this point I
cannot assume what the Florida Supreme Court will actually do in my
case. Maybe in coming weeks they will do the right thing and rule that
this new rule of constitutional law must be retroactively applied to all
Florida cases — but will they then circumvent this finding by deciding
that even though my sentences of death were by less than unanimous jury
recommendation, it was “harmless” and reschedule my execution?
All
I can really do is wait and see, as, if I’ve learned nothing else over
the past 34 years, it is that the courts are unpredictable, and we
cannot blindly assume that they will do the right thing simply because
it’s the right thing to do.
But with that said, this
Hurst v Florida decision is a good thing. For far too long Florida has
been stacking the deck against those charged with capital crimes just to
get sentences of death.
From this day forward,
Florida’s infamous “machinery of death” will now substantially subside.
It will be difficult to get any jury to unanimously recommend future
sentences of death. They will still get new death sentences imposed, but
they will become the exception rather than the rule. And of those still
under these illegally imposed sentences of death, many will now have
their current death sentences thrown out and the ranks of the condemned
will be greatly reduced.
But executions will continue
for some time to come and if the Florida Supreme Court declines to
retroactively apply Hurst to older cases like mine, or does so but finds
any error “harmless,” then my own execution will be rescheduled within
the foreseeable future.
