()

During oral arguments Wednesday, Delaware’s chief justice pressed a public defender on his argument that the state’s death-penalty statute is unconstitutional because it allows judges to override juries’ findings of fact in the sentencing phase.

The statute, Section 4209 of the Delaware Code, had come under scrutiny after the U.S. Supreme Court’s January decision in Hurst v. Florida struck down a capital-sentencing scheme in Florida, which gave judges the final say in whether to impose a sentence of death.

In an 8-1 decision, the nation’s high court ruled in Hurst that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”

On Wednesday, Santino Ceccotti, an assistant public defender in the appellate unit, told the state Supreme Court en banc in Dover that Delaware’s statute suffered from the same constitutional infirmities as the Florida law because it allows a judge to independently weigh aggravating and mitigating factors after the jury makes its own sentencing recommendation based the same findings.

The arguments came in a test case involving Benjamin Rauf, a Temple University’s Beasley School of Law graduate.

The Delaware case is captioned Rauf v. State.

Rauf, who graduated from law school in 2015, was charged in the Aug. 23, 2015, killing of a classmate, Shazim Uppal, that took place in a parking lot in Hockessin. Law enforcement officials have said the murder was the result of a drug deal gone bad.

Prosecution of his case has been delayed under an order of Superior Court President Judge Jan R. Jurden, who stayed all capital case trials in the First State in the wake of the Hurst decision. Rauf is being held without bail, a Department of Justice spokesman said.

Delaware’s death-penalty law, Ceccotti argued, allows a judge to make factual determinations that can enhance a sentence in capital cases and relegates the jury’s involvement to the kind of “advisory” role that was found to be unconstitutional in Hurst.

“The most basic tenet of the Hurst decision is that fact-finding subjecting a defendant to the death penalty must be made by a jury,” he said. “That does not occur in this state.”

But Chief Justice Leo E. Strine Jr. led a barrage of questioning from the bench challenging the idea that Delaware juries are deprived of the ability to make the initial factual finding that makes a defendant death-eligible.

“Isn’t the question … who, constitutionally, has to make that judgment in the first instance,” Strine asked, referring to the jury’s weighing of aggravating and mitigating factors.

The discussion sparked a follow-up from Justice Randy J. Holland, who indicated that the jury’s initial finding of at least one statutory aggravator constituted the factual finding necessary for the court to proceed with a death sentence.

“As I understood your argument on Hurst, it was relying on anything that’s necessary prior to the imposition of death, and in Delaware, prior to the imposition of a death sentence, you have to find the aggravators outweigh the mitigators,” the justice said.

Holland’s statement aligned with the position of state prosecutors seeking to uphold the statute, who in their briefs tried to differentiate Delaware’s law from Florida’s sentencing scheme.

Deputy Attorney General Sean P. Lugg said Delaware’s law is consistent with Supreme Court precedent laying out the elements required to impose a death sentence. The requisite “overt balancing and weighing process,” he said, is not required to be done solely by a jury.

“The element here that elevates the availability—and that’s important—the availability of the death penalty to a sentencing judge is the finding, unanimously and beyond a reasonable doubt, of the existence of that statutory aggravator,” Lugg said.

“Thereafter, there is a legislative determination that a judge needs to be involved.”

A final ruling from the court is expected sometime within the next month to a case that has sparked national interest since the state Supreme Court in late January agreed to hear the case at the request of the Superior Court in the wake of the Hurst decision.

Three amici groups have filed briefs in the case, all arguing that Delaware’s statute is unconstitutional. Meanwhile, all capital cases have been stayed, and Delaware lawmakers have suspended an effort to repeal the death penalty, both pending a decision from the high court.

Tom McParland can be contacted at 215-557-2485 or at tmcparland@alm.com. Follow him on Twitter @TMcParlandTLI.