In Hurst v. Florida, No. 14-7505, Timothy Lee Hurst, was convicted of the 1998 murder of Cynthia Lee Harrison, a co-worker at a Popeyes restaurant in Escambia County, Fla. He was tried and sentenced to death in 2000.
After the Florida Supreme Court ordered him resentenced, a second jury in 2012 recommended a death sentence by a 7-to-5 vote. The judge then independently considered the evidence concerning the appropriate punishment and concluded that Mr. Hurst should be executed.
“There is no other state that permits anyone to be sentenced to death other than by a unanimous determination by the jury,” he said. “And the State of Florida requires unanimity for shoplifting, just not for death.”
Only two states — Louisiana and Oregon — allow nonunanimous verdicts in most criminal cases, and even then at least 10 of the 12 jurors have to agree. The two states require unanimous verdicts in capital cases.
The Supreme Court upheld Oregon’s approach in 1972. Justice Sonia Sotomayor suggested that the court should consider overruling that decision.
Justice Ruth Bader Ginsburg said that would not be necessary to rule against Florida in the case before the justices. “Does 10 to 2 automatically mean that 7 to 5 is O.K.?” she asked Allen Winsor, Florida’s solicitor general.
Mr. Winsor said a simple majority vote was acceptable thanks to another challenged feature of Florida’s approach. “Even if it’s a 7-to-5 vote, you still have the judge coming behind that jury” to make the final determination, he said.
But in 2002, in Ring v. Arizona, the Supreme Court ruled that juries and not judges must make the factual findings to support death sentences. Mr. Winsor said the state’s procedure satisfied Ring because juries did make the required threshold determination that the defendant was eligible to be executed.
Justice Elena Kagan disagreed. “The crucial death eligibility determination is being made by the judge because that’s the only death eligibility determination that the appeals court is ever going to review,” she said.
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