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Wednesday, Jan 16, 2019
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Should a split jury be able to recommend death penalty?

TAMPA — When Dontae Morris's trial begins this morning, a jury will listen to the evidence and decide whether he is guilty of shooting to death Tampa police officers David Curtis and Jeffrey Kocab in 2010. A guilty verdict will require a unanimous vote of all 12 jurors.

If Morris is convicted, the same jurors will decide whether to recommend Morris be given the harshest penalty the state can mete out: death.

That vote won't have to be unanimous. Nor would it have to be nearly unanimous. Florida law requires only a simple majority, meaning a 7-5 vote could send Morris to Death Row.

Florida and Alabama are the only two states in the country that don't require a unanimous jury to recommend or decide the sentencing phase in a death penalty case.

Some legislators are trying to change that, though they face an uphill battle.

State Sen. Thad Altman, a Republican whose district covers Brevard County and parts of Indian River County, has introduced a bill requiring a unanimous jury vote to recommend the death penalty in a capital punishment case.

Altman introduced the bill in the Senate for the 2013 legislative session. It died in committee in both chambers and never got close to reaching the floor of either the House or Senate. Last month, he introduced the bill again in the Senate.

Hillsborough County Public Defender Julianne Holt would like to see such a change. She said the scale from 7-5 to 12-0 is “a wide range” for a major ruling.

“It's a recommendation that is given to the judge who has to give it great weight,” Holt said. “The judge more often than not will follow that recommendation.

“It's the ultimate penalty,” Holt said.

Stephen Harper, a law professor at Florida International University in Miami, said it only makes sense that a unanimous jury make the recommendation for the death penalty. If a unanimous jury decision is needed for a conviction, he said, the same requirement should be in place during the sentencing phase, he said.

He's also concerned that the U.S. Supreme Court could find the split jury vote in a death penalty sentencing phase unconstitutional, causing legal chaos, he said.

“My biggest issue is that the death penalty be used fairly,” said Harper, who practiced law as a criminal attorney for 28 years.

Requiring a unanimous verdict could change the attitude of the jury, Harper said.

In many cases, he said, the jury takes days to decide on the criminal trial. But the jury takes just hours to determine the sentencing phase because they know the judge makes the final decision, he said.

“Ultimately in Florida, the decision is by the judge, not the jury,” Harper said.

Harper noted that in the death sentencing phase for serial killer Ted Bundy, the jury voted 10-2 to recommend the death penalty.

Pinellas County and Pasco County State Attorney Bernie McCabe said many of the cases that were split votes by the jury in the sentencing phase would have been unanimous had the law required that.

McCabe said he doesn't have a problem with the change in the law in principle. But he wonders how the change would impact the cases that have already been decided.

“I don't have confidence a grandfather clause would be effective,” he said. “You can't control the courts.”

McCabe also noted Florida's law allowing a split decision has been challenged repeatedly - but unsuccessfully - over the years.

“We don't have jury sentencing,” McCabe said. “Ours is judge sentencing. Our judge doesn't have to accept the jury's recommendation.”

Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, said the current law works well “from the public safety and victim standpoint.” He doesn't see a need to change it.

“If you have a unanimous verdict, one person controls the whole thing,” Jacobs said.

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