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In an opinion that made even the judges who decided it uncertain, a Florida appeals court has ruled the judge in a death penalty case went too far in her attempt to implement a U.S. Supreme Court decision giving life and death sentencing power to juries, not judges. The state’s Lakeland-based 2nd District Court of Appeal unanimously reversed an order by Pasco Circuit Judge Lynn Tepper requiring prosecutors to disclose why they are seeking the death penalty against an alleged cop killer. The three-judge panel, in a little-noticed decision last week, affirmed Tepper’s ruling implementing a special verdict form that asked jurors to specify what elements of a crime warrant the death penalty. But the judges also asked the Florida Supreme Court to review both decisions by certifying them as matters of great public importance. Now it’s up to the high court to decide whether Tepper overstepped her authority and to explain how they want to implement Ring v. Arizona, the landmark 2002 decision that could send hundreds of death penalty cases nationwide back for resentencing. In Ring, the U.S. Supreme Court held that only juries should mete out the death penalty. The high court first opened the door to the Sixth Amendment issues in Ring in its 2000 ruling, Apprendi v. New Jersey, which established that jurors, not judges, are responsible for determining the facts that justify increased sentences. But Ring has left lower court judges nationwide wondering just how much to expand the jury’s role. That’s the situation Tepper was in when she issued the pretrial ruling that ordered prosecutors to disclose the reasons they are seeking the death penalty against Alfredie Steele Jr. Steele, 20, is accused of killing Pasco County sheriff’s Lt. Charles “Bo” Harrison, a 31-year veteran, in the summer of 2003. Department spokesman Kevin Doll said Steele lay in wait in the woods behind a nightclub that Harrison and other officers were staking out in a van. Steele allegedly used an automatic rifle to shoot Harrison in the back while he was in the van. Reports indicate Steele was angry with police after some of his friends were arrested, Doll said. Tepper said in an interview that she agrees with Ring and ruled in that light. “I just don’t understand the rational basis for failing to disclose” a prosecutor’s reasons for seeking the death penalty, she said. “There is certainly no constitutional right for the state to keep this a secret until you commence the penalty phase. Nobody wins if it’s reversed 12 years from now and you’re trying to redo the case.” The 2nd DCA’s chief judge, Chris W. Altenbernd, and Judges Morris Silberman and Craig C. Villanti issued the four-page opinion on Tepper’s ruling. In it, they explained that they asked for high court review “because this ruling could affect many cases that may ultimately be reviewed by the Supreme Court.” Tepper said the high court should review her order and understands why the appellate panel ruled as it did. “I’m glad it was certified to the Supreme Court, because they should decide it,” she said. “I’ll be anxious to see how quickly they take it up. I tend to go further than others would at times.” Martin McClain, an appellate defense attorney in death cases, said the ruling is just another cry from Florida judges for Supreme Court assistance. “Clearly, Ring was in the judge’s mind and I think that reflects that circuit court judges have been waiting for guidance from the Florida Supreme Court on how to implement Ring and so far not much guidance has come,” said McClain, a partner in Fort Lauderdale-based McClain & McDermott. “By certifying those two questions of great public importance, that’s basically the 2nd DCA joining the chorus and saying, ‘Florida Supreme Court, please tell us what to do.’” So far, though, the justices themselves haven’t agreed on the decision’s scope. Chief Justice Harry Lee Anstead concurred in result only in last June’s Duest v. State, in which the majority declined to overturn a killer’s sentence and conviction, rejecting the defense argument that Ring bars use of a prior conviction to justify a death sentence for a different. Anstead routinely concurred with the majority in upholding the death sentence in 2003, but he regularly dissented with the court’s application of Ring. Anstead said the majority decision in Duest “violates the core principle of Ring that aggravating circumstances actually relied upon to impose a death sentence may not be determined by a judge alone.” McClaim agrees. “At its core, Ring is about what the Sixth Amendment means,” he said. “It’s not just the jury, but also the right of notice. The question of the right to have a unanimous verdict. When you’re saying the Sixth Amendment attaches to something like the death penalty, it has ramifications beyond just ‘Does the jury decide that?’” But Carolyn Snurkowski, the assistant deputy attorney general who supervised the appeal of Tepper’s ruling, said the issues the judge raised are not true Ring issues. “The fact that they’re now calling it a Ring issue doesn’t make these issues any newer,” Snurkowski said. “They’re just using Ring to reargue these old issues.” In Vining v. State, a 1994 Florida Supreme Court ruling that the 2nd DCA cited in Friday’s opinion, the justices held that there is no reason to require prosecutors to tell defendants the aggravating factors that make them eligible for the death penalty because the circumstances that make a crime punishable by death are so clearly enumerated in state law. Among the 14 elements to a murder that allow for a death sentence are gang involvement, a particularly heinous act, an elderly or child victim, or premeditation. But McClain said that’s too narrow a reading of Ring. Ultimately, the state’s seven Supreme Court justices will decide who is right. In the meantime, Judge Tepper and her judicial colleagues in Florida’s 67 counties will have to rely on their own readings of the decision. “What was in my mind is very plain and simple: It’s just what’s fair that when we seek the ultimate penalty we should do so with candor and without surprise,” Tepper said. “And it shouldn’t be about posturing or strategy.”

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