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.