Needed fixes to Florida's death penalty law remain elusive

TALLAHASSEE — After emotional and graphic testimony from families of murder victims, House members held firm Wednesday on a new Florida law that does not require juries to be unanimous in recommending the death penalty.

The House Judiciary Committee passed a bill that changes state law to comply with a U.S. Supreme Court case that invalidated the law because judges — not juries — make the final decisions to warrant the death penalty. The decision, Hurst vs. Florida, was issued on Jan. 12, the day the legislative session began.

Timothy Lee Hurst was convicted of using a box cutter to kill a co-worker at a Pensacola restaurant in 1998, and a jury recommended a death sentence by a 7-5 vote. The Hurst decision did not address jury unanimity, but that issue is dominating debate in Tallahassee.

The 18-member committee passed HB 7101 after a party-line vote to reject an amendment by Democratic Rep. Jose Javier Rodriguez of Miami that would have required future juries to be unanimous in recommending death.

That requirement is already in a Senate death penalty bill (SB 7068) that has broad bipartisan support, putting the two chambers at odds in the major criminal justice issue of the 2016 session.

Sensing defeat, Rodriguez tried to withdraw his amendment before a vote, but Republicans, led by Rep. Charles McBurney, R-Jacksonville, the chairman, refused and demanded a roll call vote so they could be on record as opposing a requirement for unanimous jury recommendations.

The House and Senate agree on two other key elements: a jury must unanimously agree to all aggravating factors needed to justify a death sentence, and a judge cannot override a jury's recommendation of life without parole and impose a death sentence.

Thirty-two states allow capital punishment, but Florida is one of only three states that do not require a jury to be unanimous in recommending death.

Alabama requires at least 10 jurors to agree and Delaware has a law similar to Florida's, but it's now under review by the Delaware Supreme Court.

Florida prosecutors, led by State Attorney Brad King in Ocala, are against a unanimous jury agreement for a death sentence recommendation. Rather, they are lobbying for a law that would require at least nine of 12 jurors to agree.

King's testimony focused on crime victims, and he cited a case that he personally tried: the rape and murder in 2005 of a 9-year-old Homosassa girl, Jessica Lunsford, by John Couey.

Couey, who was sentenced to death by a jury in Miami-Dade on 10-2 vote, died of cancer in 2009 before his sentence could be carried out.

"If John Couey is not one of the worst of the worst, I couldn't tell you who is," King told lawmakers.

Polk County Public Defender Rex Dimmig, speaking for public defenders statewide, predicted a flood of lawsuits by inmates if the Legislature does not act now to require jury recommendations of death to be unanimous.

"Take us out of the situation of being an outlier state," Dimmig pleaded with lawmakers. "Address it now."

Both houses must agree on a new law and Gov. Rick Scott must sign it for executions to resume. Legislators have conferred extensively in private with Attorney General Pam Bondi, whose office lost the Hurst case in the U.S. Supreme Court.

"We will find a resolution to the issue and I think there's some middle ground there," said Sen. Rob Bradley, R-Fleming Island. He said one possibility is a compromise to require at least 10 of 12 jurors to agree on a recommendation of death.

Wednesday's House committee vote to send the bill to the House floor was 17-1 with every lawmaker voting yes except Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, who said she opposes capital punishment.

Among those voting for the bill were Republican Reps. Ross Spano of Dover and Carlos Trujillo of Miami and Democrats Dwight Dudley of St. Petersburg, Katie Edwards of Plantation and Jared Moskowitz of Coral Springs.

Florida has 389 inmates on death row, some of whom have been there for 30 years or more. The Florida Supreme Court has indefinitely postponed the execution of Michael Lambrix, a convicted double murderer who has been on death row since 1984 and who had been scheduled to die today.

Contact Steve Bousquet at bousquet@tampabay.com or (850) 224-7263. Follow @stevebousquet.