Florida death-penalty battle rages over sentencing

A legal fight over who determines capital penalties could impact many states.

Linroy Bottoson is no stranger to the importance of last-minute appeals. Twice, the Florida death-row inmate has been served his specially requested final meal of steamed shrimp, fried oysters, apple pie, and butter-pecan ice cream. And twice, judges intervened not long afterward to block his impending execution.

Now, Mr. Bottoson and another death-row inmate, Amos King, are at the center of a major Florida Supreme Court battle that could mark a turning point for the imposition of the death penalty in this state.

With 371 inmates on Florida's death row, the fight is being closely watched by advocates across the country on both sides of the capital-punishment debate.

At issue isn't newly discovered evidence or a recently found witness. Rather, the last-ditch appeals of Mr. King and Bottoson are based on a 7-to-2 decision issued June 24 by the US Supreme Court in a case called Ring v. Arizona.

In the Ring case, the nation's highest court invalidated death-penalty sentencing procedures in Arizona and four other states that rely on judges rather than juries to issue death sentences. The justices ruled for the first time that a capital defendant has a Sixth Amendment right to have a jury determine the applicability of a death sentence.

But what the high court didn't make clear in its 23-page ruling is how the Ring decision should apply in states such as Florida that use both judges and juries to mete out capital sentences. In Florida, the life-or-death sentencing decision is made by a trial judge – but only after the jury determines that a defendant qualifies for a death sentence.

Is a jury's recommendation enough?

Lawyers for Bottoson and King argue that Florida's system nonetheless violates a defendant's Sixth Amendment right to a jury trial because Florida juries issue only advisory opinions: They don't have to be unanimous, and they can be ignored by the sentencing judge.

Lawyers for the state counter that a Florida defendant is eligible for a death sentence as soon as a jury returns a guilty verdict in a capital case.

They say that crucial determination during the guilt phase of the trial satisfies the necessary Sixth Amendment jury-trial protections.

A decision is expected within the next two months, but could come as early as Thursday, analysts say.

Death-penalty opponents are hoping the Bottoson and King cases add to momentum that they say is growing nationwide in large part as a result of the Innocence Project, which has used DNA evidence to free more than 100 men wrongly convicted. In addition, they hope to encourage what they see as a trend at the US Supreme Court toward more scrutiny of death-penalty cases.

'A nasty little mess'

"Ring is a big deal. We just don't have a handle on the numbers yet," says David Elliot of the National Coalition to Abolish the Death Penalty. "One suspects that ultimately, the US Supreme Court is going to have to revisit this issue and elaborate on what exactly [the justices] meant in their Ring decision."

Florida prosecutors agree that the Ring issue may ultimately head back to the nation's highest court. "All this is such a nasty little mess," says Carolyn Snurkowski, who is in charge of criminal appeals at the Florida Attorney General's Office.

But Ms. Snurkowski is quick to add that both the US Supreme Court and the Florida Supreme Court have issued a string of rulings over the years upholding Florida's capital-sentencing system. She says there is no reason now for the state's highest court to take a different view.

Michael Mello, a law professor at the University of Vermont, disagrees. A former defense attorney who specialized in death-penalty appeals in Florida, Mr. Mello says Florida's death-penalty sentencing procedures are fundamentally flawed.

A moral question, deferred

"The real problem is the diminution of responsibility in death sentencing in Florida," Mello says. "The core structural defect is that neither the judge nor the jury bears ultimate moral and legal responsibility for the death decision."

That division of responsibility, he says, makes it much easier for defendants in Florida to be sentenced to death.

"The jury defers that ultimate moral responsibility for deciding that a fellow human being deserves to die to the judge," he continues. "The judge then defers it back to the jury, with the end result that neither the judge nor the jury bears what ought to be an awesome, bone-crushing responsibility."

Snurkowski says that critics are misreading Florida's death-penalty procedures. "This whole idea that the jury is not a full participant in the penalty phase [of a capital trial] is a misnomer," she says. The courts have recognized that Florida juries act as a "cosentencer" in death-penalty cases, she says.

In the King case, the jury voted 12-to-0 for a death sentence. In the Bottoson case, it voted 10-to-2 for death. These were more than mere recommendations, Snurkowski says.

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