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The Florida Supreme Court issued another mixed message Wednesday on the constitutionality of the state’s unusual rules for how juries impose death sentences. When prosecutors seek the death penalty, trial judges are allowed to require prosecutors to give defense attorneys pretrial evidence of aggravating circumstances justifying capital punishment, a divided Florida Supreme Court ruled. But defendants do not have to give prosecutors evidence of factors mitigating against the death penalty before trial, the majority ruled in State of Florida v. Alfredie Steele. On the broader issue of whether the death penalty system is constitutional, the high court majority urged the Florida Legislature to revisit the rules for how juries decide whether to impose the death sentence in light of the U.S. Supreme Court’s 2002 ruling in Ring v. Arizona. Wednesday’s decision illustrates the continuing confusion over the impact of Ring. In that Sixth Amendment case, the nation’s high court ruled that if aggravating factors operate as sentencing enhancements in death penalty cases, those factors must be found by the jury, not the judge. Despite much hand-wringing over the issue in subsequent cases, the Florida Supreme Court has not conclusively decided how Ring applies in Florida — even though then-Chief Justice Harry Lee Anstead wrote in 2002 that “we appear to be left with a judicial fact-finding process that is directly contrary to the U.S. Supreme Court’s holding in Ring.” In Wednesday’s majority opinion, the court said that the uncertainty over how Ring applies in Florida “has left trial judges groping for answers.” The state had argued in Steele that allowing a trial judge to require advance notice of aggravating factors conflicts with previous Florida Supreme Court decisions and that such notice is not needed because each side presents its evidence in discovery. But the state Supreme Court majority held Wednesday that the high court’s previous decisions dealt with whether a judge must require pretrial notice of aggravating factors — not whether a judge had the discretion to require notice. “Although it is clear that no statute, rule of procedure, or decision of this court or the United States Supreme Court compels a trial court to require advance notice of aggravating factors, it is equally clear that none prohibits it, either,” according to the majority decision, written by Justice Raoul G. Cantero III. Justices Charles T. Wells, R. Fred Lewis, Peggy A. Quince and Kenneth B. Bell concurred with Justice Cantero’s opinion. Wells authored a specially concurring opinion in which he stressed the need for legislative action, suggesting that the federal laws requiring advance notice of aggravating factors and the imposition of the death penalty only by a unanimous jury could serve as a paradigm for Florida to follow. Cantero and Bell concurred with Wells’ specially concurring opinion. Chief Justice Barbara J. Pariente authored her own opinion, concurring in part and dissenting in part. She joined with the other justices in finding that pretrial notice of aggravating circumstances was fair and that there is a need for legislative review of Florida’s capital sentencing system. But she disagreed that jurors cannot be allowed to vote on each aggravating factor. “Rather than cause a miscarriage of justice, a special verdict on aggravating circumstances promotes justice by enhancing juror fact-finding, conveying useful information to the sentencing court, and facilitating appellate review,” she wrote. Anstead concurred with Pariente’s opinion. But Robert Dillinger, a Pinellas and Pasco public defender in the case, was less than satisfied with the outcome. He argued that Florida needs to rectify its capital sentencing system to require jurors to be unanimous in their findings in death penalty cases. “There should be a unanimous finding of death, and there should be a unanimous decision on what aggravators apply and a unanimous vote on those [individual aggravators],” Dillinger said in an interview. In his majority opinion, Cantero seemed to agree, though the majority declined to issue a binding decision on this issue. “The bottom line,” Cantero wrote, “is that Florida is now the only state in the country that allows the death penalty to be imposed even though the penalty-phase jury may determine by a mere majority vote both whether aggravators exist and whether to recommend the death penalty. Assuming that our system continues to withstand constitutional scrutiny, we ask the Legislature to revisit it to decide whether it wants Florida to remain the outlier state.” Assistant Deputy Attorney General Carolyn Snurkowski said the state is pleased with the decision. “We thought we got some of the issues clarified with regards to Ring,” she said. She rejected the idea that the Legislature needs to change the state capital sentencing statutes just because Florida does not require unanimous findings by a jury on aggravating factors or the actual penalty of death as other states do. “No one knows what’s the right way or the wrong way, and everybody just has to do what they think is the right thing,” she said. She added that the U.S. Supreme Court has noted that because a group of states impose the death penalty in one way does not mean another state needs to conform to the same method. Dillinger disagreed, saying the U.S. Supreme Court “gave the [Florida] Legislature fair notice — this needs to be fixed. We are unique in the country, and if the Florida Supreme Court doesn’t fix it, the U.S. Supreme Court may fix it.” Tampa-based Assistant Attorney General Candance M. Sabella represented the state, while Dillinger and a fellow public defender Joy Goodyear represented Steele. The defendant who brought the appeal is Alfredie Steele. In June 2003, Steele was charged with fatally shooting a Pasco County sheriff’s deputy in the back with a rifle. Three months later, Steele sought to have Florida’s death penalty system declared unconstitutional in light of the Ring decision. After a hearing on the possible impact of Ring, Pasco Circuit Judge Lynn Tepper decided to require the state to submit its aggravating circumstances in advance. She also required that the jurors be given a special verdict form to vote on whether they thought each aggravating circumstance applied. Finally, she ruled that the jury would have to agree by a majority whether each aggravator applied. In March 2004, the state asked the 2nd District Court of Appeal to review Tepper’s orders. The following month, a unanimous three-judge panel quashed Tepper’s order requiring pretrial notice of the aggravating factors. But the panel chose not to review her order regarding the verdict form for the jurors. The 2nd DCA submitted each question as an issue of great public importance to the Florida Supreme Court. In its decision Wednesday, the Supreme Court majority noted that Florida is unique in its laws regarding juries and death penalties. It noted that 35 of the 38 states that permit the death penalty require at the minimum that a jury unanimously find aggravating circumstances exist. The court went on to explain that of those 35 states, 24 require a jury to unanimously agree that both aggravating circumstances exist and that the defendant should be sentenced to death. In its ruling, the majority noted that while Florida formerly had only six aggravating circumstances allowing a jury to vote for the death penalty, there are now 14 aggravating circumstances. “Because of the expansion in available aggravating circumstances, as well as the absence of any express prohibition on requiring advance notice of aggravators, we conclude that a trial court does not violate a clearly established principal of law in requiring the state to provide such notice,” the majority said. “Whether to require the state to provide notice of alleged aggravators is within the trial court’s discretion.” The majority also held that because of Florida’s “broad” discovery rules, providing pretrial notice of aggravating circumstances “does not impose a substantial — or substantive — additional burden.” The majority also rejected the state’s claim that it’s unfair to require the state to submit its aggravating factors in advance but not to require the defense to submit its mitigating factors. “The state’s obligation to prove one or more statutory aggravators beyond a reasonable doubt before a defendant may be subjected to a sentence of death is different in kind from the defendant’s decision whether to present mitigation,” the majority said. “A trial court’s failure to impose a reciprocal obligation does not constitute a departure from the essential requirements of law constituting a miscarriage of justice.” The majority added a caveat, however, that a judge cannot prevent prosecutors from relying on an aggravating fact that was not previously disclosed. The court rejected Steele’s argument that a trial judge can use a verdict form to require that jurors agree by a majority that individual aggravating circumstances apply in case. The state argued that requiring jurors to agree by a majority that a specific aggravator apply diverges from state law, which requires only that a majority of jurors agree that at least one aggravating fact applies. In rejecting Steele’s contention on this point, the majority said that “unless and until a majority of this court concludes that Ring applies in Florida, and that it requires a jury’s majority (or unanimous) conclusion that a particular aggravator applies, or until the Legislature amends the statute, the court’s order imposes a substantive burden on the state not found in the statute and not constitutionally required.”

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