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State Taking Escambia Popeye’s Death Penalty Case To U.S. Supreme Court

The state plans to ask the U.S. Supreme Court to revisit a landmark Escambia County case in which justices struck down as unconstitutional Florida’s death-penalty sentencing procedure because it gave too much power to judges, instead of juries.

Attorney General Pam Bondi’s lawyers will appeal a ruling by the Florida Supreme Court in the case of Timothy Lee Hurst, according to a motion asking a judge to put on hold a resentencing hearing for Hurst. That resentencing hearing was ordered by the Florida Supreme Court in October.

Hurst was sentenced to death for the 1998 killing of fast-food worker Cynthia Harrison in Pensacola. Harrison, an assistant manager at a Popeye’s Fried Chicken restaurant on Nine Mile Road where Hurst worked, was bound, gagged and stabbed more than 60 times. Her body was found in a freezer.

The state is objecting to the Florida court’s interpretation of the U.S. Supreme Court’s landmark decision in January in the Hurst case, according to the document filed in Escambia County.

The U.S. Supreme Court’s decision in Hurst’s case found that Florida’s system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury. The court sent Hurst’s case back to the Florida high court.

At the time of the January ruling, Florida’s system allowed jurors by a simple majority to recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed, a process known as “weighing.”

Florida lawmakers hurriedly rewrote the law this spring, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.

The new law, approved by Gov. Rick Scott, also required juries to weigh whether sufficient mitigating factors exist to outweigh the aggravating circumstances, but the law is silent about whether those decisions must be unanimous.

In October, the Florida Supreme Court ruled that the new statute was unconstitutional because it did not require unanimous jury recommendations about imposing the death penalty, something not addressed by the U.S. court decision.

The Florida court, in a 5-2 ruling, decided that the lack of unanimity in the state law runs afoul of protections guaranteed by the U.S. and state constitutions.

The majority also found that the U.S. Supreme Court decision in Hurst mandated that all findings necessary for imposition of a death sentence are “elements” that must be decided by a jury, and Florida “has a longstanding history of requiring unanimous jury verdicts as the elements of a crime,” the majority wrote.

But the state disagrees.

The Florida court interpreted the U.S. court’s earlier ruling in Hurst “to require jury findings of all aggravating circumstances; mitigating circumstances; and weighing rather than only requiring jury findings of one aggravating circumstance,” Senior Assistant Attorney General Charmaine Millsaps and Assistant Attorney General John Molchan wrote in the six-page request in Escambia County.

“The state of Florida believes this expansive reading to be in error and will seek discretionary review in the United States Supreme Court,” the lawyers wrote.

But defense lawyers said the state’s appeal is problematic because the Florida Supreme Court based its Hurst ruling in large part on the state’s constitutional guarantee to trial by jury.

“They’re unhappy with the result, and they’re unhappy with all of these death sentences being reversed. But they’re running into a problem: what’s the federal issue and what’s the state issue. The U.S. Supreme Court doesn’t have jurisdiction to decide what the state statute meant. That’s a question of state law,” lawyer Martin McClain, who has represented more than 250 defendants in death penalty cases, said in a telephone interview Monday.

In its Hurst ruling, the Florida Supreme Court concluded that “under the commandments of Hurst v. Florida, Florida’s constitutional right to trial by jury, and our Florida jurisprudence, the penalty phase jury must be unanimous in making the critical findings and recommendation that are necessary” before death can be imposed.

“I believe the U.S. Supreme Court is unlikely to interfere with a state Supreme Court interpreting state law and that state’s Constitution,” said Pete Mills, a 10th Judicial Circuit assistant public defender who is chairman of the Florida Public Defenders Association’s Death Penalty Steering Committee.

While the U.S. Supreme Court ruling in Hurst did not address unanimity, the state’s appeal of the Florida court’s decision could be an attempt to get a federal ruling on the issue.

“I think they’re trying to get another bite at the apple,” said 5th Judicial Circuit Public Defender Mike Graves. “I don’t understand how they expect to get from here to there.”

by Dara Kam, The News Service of Florida with contribution from NorthEscambia.com