Amicus Curiae Brief — Fred Anderson, Jr., Petitioner v. Florida

No. 18-1306

IN THE

Supreme Court of the United States

————

FRED ANDERSON, JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

————

On Petition for Writ of Certiorari to the

Supreme Court of Florida

————

BRIEF OF AMICI CURIAE RETIRED FLORIDA

JUDGES AND JURISTS IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

————

ARDITH BRONSON

MAIA SEVILLA-SHARON

DLA PIPER LLP (US)

200 S. Biscayne Blvd.

Suite 2500

Miami, FL 33131-5341

(305) 423-8562

ardith.bronson@

dlapiper.com

maia.sevillasharon@

dlapiper.com

ILANA H. EISENSTEIN

Counsel of Record

DLA PIPER LLP (US)

One Liberty Place

1650 Market St.

Suite 5000

Philadelphia, PA 19103

(215) 656-3300

ilana.eisenstein@

dlapiper.com

Counsel for Amici Curiae

May 16, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTERESTS OF AMICI CURIAE ......................

1

SUMMARY OF ARGUMENT .............................

3

ARGUMENT ........................................................

6

THE COURT SHOULD GRANT REVIEW

OF THIS CAPITAL CASE TO ADDRESS

THE FEDERAL CONSTITUTIONAL ARGUMENTS THAT THE FLORIDA SUPREME

COURT HAS REPEATEDLY IGNORED .......

6

A. The Florida Supreme Court’s Decision

Conflicts With Hurst and Caldwell and

Unjustly Denies Petitioner and Other

Similarly Situated Defendants a Constitutional Capital Sentencing Process ..............

6

B. The Florida Supreme Court’s Per Se

Harmless Error Rule Violates the

Eighth Amendment and This Court’s

Precedents .................................................

10

C. The Florida Supreme Court’s Per Se Rule

Is at Odds with Sullivan v. Louisiana .....

14

D. To Avoid Repeating the Injustices of the

Past, the Questions Presented by the

Petition Should Be Decided Sooner

Rather Than Later ....................................

15

CONCLUSION ....................................................

18

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...................................

16

Atkins v. Virginia,

536 U.S. 304 (2002) ...................................

17

Bollenbach v. United States,

326 U.S. 607 (1946) ...................................

10

Bottoson v. Moore,

833 So. 2d 693 (Fla. 2002) ........................

16

Boyde v. California,

494 U.S. 370 (1990) ................................... 9-10

Caldwell v. Mississippi,

472 U.S. 320 (1985) ..................................passim

California v. Brown,

479 U.S. 538 (1987) ...................................

5

California v. Ramos,

463 U.S. 992 (1983) ...................................

7

Chapman v. California,

386 U.S. 18 (1967) ........................... 4, 10, 11, 15

Combs v. Florida,

525 So. 2d 853 (Fla. 1998) ........................

8

Duest v. Florida,

855 So. 2d 33 (Fla. 2003) ..........................

16

Eddings v. Oklahoma,

455 U.S. 104 (1982) ...................................

7

Furman v. Georgia,

408 U.S. 238 (1972) ...................................

5

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Gardner v. Florida,

430 U.S. 349 (1977) ...................................

7

Godfrey v. Georgia,

446 U.S. 420 (1980) ...................................

12

Gregg v. Georgia,

428 U.S. 153 (1976) ...................................

5, 7

Hall v. Florida,

572 U.S. 701 (2014) ...................................

17

Hitchcock v. Dugger,

481 U.S. 393 (1987) ...................................

17

Hurst v. Florida,

136 S. Ct. 616 (2016) ................................passim

In re Standard Jury Instructions in

Criminal Cases—Report No. 2005-2,

22 So. 3d 17 (Fla. 2009) ............................ 13, 14

Kennedy v. Louisiana,

554 U.S. 407 (2008) ...................................

5

LeBron v. Florida,

982 So. 2d 649 (Fla. 2008) ........................

14

Lockett v. Ohio,

438 U.S. 586 (1978) ................................. 5, 7, 16

Pope v. Wainwright,

496 So. 2d 798 (Fla. 1986) ........................

8

Ring v. Arizona,

536 U.S. 584 (2002) ............................... 6, 16, 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Sullivan v. Louisiana,

508 U.S. 275 (1993) ............................... 4, 14, 15

Woodson v. North Carolina,

428 U.S. 280 (1976) ............................ 5, 7, 11-12

U.S CONSTITUTION

U.S. Const. amend. VI .................................passim

U.S. Const. amend. VIII ..............................passim

MISCELLANEOUS

Am. Bar Assoc., Evaluating Fairness and

Accuracy in State Death Penalty Systems:

The Florida Death Penalty Assessment

Report (Sept. 2006), https://bit.ly/2vS5

Mu7............................................................ 12, 13

William J. Bowers et al., The Decision Maker

Matters: An Empirical Examination of

the Way the Role of the Judge and Jury

Influence Death Penalty Decision-Making,

63 Wash. & Lee L. Rev. 931 (2006) .......... 12, 13

Death Penalty Info. Ctr., Execution

Database, https://bit.ly/2Q0Ce6G (last

visited May 12, 2019) ................................

17

2 Randy Hertz & James S. Liebman,

Federal Habeas Corpus Practice and

Procedure (6th ed. 2011) ...........................

17

INTERESTS OF AMICI CURIAE1

The issue before the Court is the constitutionality of

the Florida Supreme Court’s conclusion that a unanimous advisory jury vote renders a judge-imposed

death sentence harmless. Amici are retired judges

and jurists who have served at various levels of the

Florida judicial system. They include trial judges who

have presided over capital cases and Justices of the

Florida Supreme Court. Collectively, they have spent

well over a century in public service, devoting time,

effort, and in some instances their entire careers to the

pursuit of justice in Florida’s judicial system. They,

therefore, have particular interest and expertise in

the legal and practical ramifications of the Florida

Supreme Court’s treatment of judge-imposed death

sentences following a unanimous advisory jury vote.

Former Justice Rosemary Barkett served on the

Florida Supreme Court between 1985 and 1994, during

which time she held the position of Chief Justice from

1992 to 1994. Justice Barkett served on the United

States Court of Appeals for the Eleventh Circuit

between 1994 and 2013. She presently serves on

the Iran-United States Claims Tribunal, The Hague.

Before taking the Florida Supreme Court bench,

Justice Barkett served in Florida’s Fifteenth Judicial

Circuit from 1979 to 1984, and as a judge in the Fourth

District Court of Appeal between 1984 and 1985.

1

Pursuant to Supreme Court Rules 37.2(a), 37.3(a) and 37.6,

Amici Curiae certify that no counsel for a party authored this

brief in whole or in part, and no such counsel or party made a

monetary contribution intended to fund the preparation or

submission of the brief, Counsel of Record for all parties received

timely notice of amici curiae’s intention to file this brief, and that

the parties have consented to the filing of this brief.

2

Former Justice Gerald Kogan served on the Florida

Supreme Court from 1987 to 1998. Justice Kogan

previously served as chief prosecutor of Miami-Dade

County, Florida’s Homicide and Capital Crimes Division

and as a circuit judge in Florida’s Eleventh Judicial

Circuit.

Former Justice James E.C. Perry served on the

Florida Supreme Court from 2009 to 2016 and served

as both a circuit judge and Chief Judge in Florida’s

Eighteenth Judicial Circuit prior to his elevation.

Justice Perry previously was in private practice at the

law firm of Perry & Hicks, P.A., specializing in civil

and business law.

Former Justice Harry Lee Anstead served on the

Florida Supreme Court from 1994 to 2009. Justice

Anstead previously had served as a trial and appellate

lawyer until 1977, when he became a judge in Fourth

District Court of Appeal.

Former Judge O.H. Eaton, Jr., served in Florida’s

Eighteenth Judicial Circuit from 1986 to 2010. Judge

Eaton previously served as a captain in the U.S. Army

in Vietnam and a prosecutor in Seminole County,

Florida. He is considered a death penalty expert and

has taught judges across the country how to handle

capital cases.

Former Judge Laura Melvin served in Florida’s

First Judicial Circuit from 1990 until 2000, during

which time she presided over capital trials. Judge

Melvin previously served as an Assistant State Attorney

in the First Judicial Circuit and an Assistant Public

Defender in the Fifth Judicial Circuit.

3

SUMMARY OF ARGUMENT

Petitioner, Fred Anderson, was sentenced to die

pursuant to a capital sentencing scheme this Court

has struck down as unconstitutional in Hurst v.

Florida, 136 S. Ct. 616 (2016). Yet, in defiance of the

Court’s decision in Hurst, the Florida Supreme Court

has refused to order resentencing for petitioner,

applying a per se rule that also affects 33 similarly

situated defendants. The Florida Supreme Court’s

decisions disregard the jury’s constitutional responsibility to make the grave decision to sentence a person

to death. Hurst held that the Constitution requires

the jury to make the critical factual findings necessary

to impose the death penalty. Id. at 622. This Court in

Hurst admonished that an advisory jury recommendation to impose a death sentence is a “constitutional

non-entity,” the equivalent of “no jury findings” at all.

Id. (citation omitted) As a result, the Court held that

Florida’s death-penalty scheme, which relegated the

jury to an advisory role divorced of a critical factfinding mission, violated the Sixth Amendment. See

id.

The Florida Supreme Court has failed to implement

Hurst’s holding by denying resentencing to defendants

like Fred Anderson, who were sentenced to death by a

judge rather than a jury, so long as the jury’s advisory

death recommendation was unanimous. The per curiam

opinion of the Florida Supreme Court perpetuated its

per se rule that any advisory recommendation for the

death penalty is automatically harmless if the jury’s

recommendation was unanimous. See Pet. App. 2a

(stating that the court has “consistently . . . den[ied]

Hurst relief to defendants who have received a

unanimous jury recommendation of death”). That

per se rule is deeply flawed. The Florida Supreme

4

Court’s per se harmlessness rule fails to heed Hurst’s

core holding that death sentences imposed under an

advisory jury regime are constitutionally defective.

The court’s approach also is irreconcilable with

Caldwell v. Mississippi, 472 U.S. 330 (1985) where

this Court held it is “constitutionally impermissible to

rest a death sentence on a determination made by a

sentencer who has been led to believe that the

responsibility for determining the appropriateness of

the defendant’s death rests elsewhere.” Id. at 328-29.

Where a jury is not informed that it is the final arbiter

of life and death, this Court has determined that the

result is inherently unreliable and therefore violative

of the Eighth Amendment’s protections against cruel

and unusual punishment. Id. at 330. Similarly, in

Sullivan v. Louisiana, 508 U.S. 275 (1993), this Court

held that the failure to instruct the jury on the beyonda-reasonable-doubt standard was so inimical to the

Sixth Amendment’s guarantee of the right to a jury

trial, that it “vitiate[d] all the jury’s findings.” Id. at

281. Under those landmark precedents, a death sentence imposed with only an advisory jury recommendation requires reversal of the death sentence, not

a per se affirmance.

Even under harmless error review, the Florida

Supreme Court’s per se rule is improper. Under the

familiar harmless error review established by this

Court in Chapman v. California, a court must make a

fact-specific determination whether the error was

proven harmless beyond a reasonable doubt. 386 U.S.

18 (1967). A court, at minimum, must actually

evaluate whether a jury may have viewed both the

proceeding and its own duties through an entirely

different lens and potentially reached a different

result if it had been required to make the critical

5

factual findings unanimously and had it been properly

instructed on its role as the final decision-maker.

Unless no reasonable doubt exists about that outcome,

the death sentence must be reversed.

The jurors that recommended a death sentence for

petitioner were not instructed that his life lay in their

hands. They did not make factual findings regarding

the presence of aggravating and mitigating factors.

Nor did the juries who sentenced 33 other inmates

currently on Florida’s death row make those

constitutionally-mandated decisions.

The consequences of these grave constitutional

errors are too severe to leave their challenges unanswered. Since Furman v. Georgia, 408 U.S. 238

(1972) (per curiam), this Court has repeatedly

reaffirmed that “death is different,” “unique in its

severity and irrevocab[le],” and must not be “inflicted

in an arbitrary and capricious manner.” Gregg v.

Georgia, 428 U.S. 153, 187-88 (1976); see also Kennedy

v. Louisiana, 554 U.S. 407, 436 (2008) (citing California v. Brown, 479 U.S. 538, 541 (1987) (“[D]eath

penalty statutes [must] be structured so as to prevent

the penalty from being administered in an arbitrary

and unpredictable fashion.”)). Nor should death be

meted out in a system lacking constitutional reliability. See Woodson v. North Carolina, 428 U.S. 280

(1976); see also Lockett v. Ohio, 438 U.S. 586, 604

(1978) (plurality opinion) (there is a “qualitative

difference between death and other penalties” requiring “a greater degree of reliability when the death

sentence is imposed”).

The Florida Supreme Court’s harmless error approach

is inconsistent with this Court’s precedents and taints

the sanctity of the jury’s role as the community’s

conscience. It deprives not only petitioner but 33

6

other similarly-situated death row inmates of the

fundamental protections of the Sixth and Eighth

Amendments. There is nothing harmless about such

error. The petition for a writ of certiorari should

accordingly be granted.

ARGUMENT

THE COURT SHOULD GRANT REVIEW OF

THIS CAPITAL CASE TO ADDRESS THE

FEDERAL CONSTITUTIONAL ARGUMENTS

THAT THE FLORIDA SUPREME COURT HAS

REPEATEDLY IGNORED.

A. The Florida Supreme Court’s Decision

Conflicts With Hurst and Caldwell and

Unjustly Denies Petitioner and Other

Similarly Situated Defendants a Constitutional Capital Sentencing Process

At the heart of this Court’s Eighth Amendment

jurisprudence lies the assumption that those charged

with the weighty task of capital sentencing would view

their duty as the serious one of determining whether

a “human being should die at the hands of the State.”

Caldwell v. Mississippi, 472 U.S. 320, 329 (1985); see

also Ring v. Arizona, 536 U.S. 584 (2002). As a result,

“the Eighth Amendment requires individual jurors to

make, and to take responsibility for, a decision to

sentence a person to death.” Ring, 536 U.S. at 618

(Breyer, J., concurring in the judgment). A sentencer’s

understanding of this “awesome responsibility” in

making a sentencing decision is therefore indispensable to the Eight Amendment’s protection against

cruel and unusual punishment. Caldwell, 472 U.S. at

341. The principles articulated in Caldwell reflect the

Court’s conception of capital punishment in the context of the Eighth Amendment, as not only prohibiting

7

punishments which “involve the unnecessary and

wanton infliction of pain,” (Gregg, 428 U.S. at 173), but

also requiring that the process by which the sentence

is imposed is free from arbitrariness and caprice. Id.

at 195, 198.

In Caldwell, the penalty phase jury did not receive

an accurate description of its role in the sentencing

process because the State suggested that the jury’s

decision to impose the death penalty would not be

final, but instead would be subject to appellate court

review. 472 U.S. at 328-29. This Court found that

those remarks “led [the jury] to believe that the

responsibility for determining the appropriateness of

the defendant’s death [sentence] rests elsewhere.” Id.

at 329. This Court concluded that, because the State’s

remarks may have affected the jury’s sentencing

decision, the capital sentence failed to satisfy the

Eighth Amendment’s standards of reliability. Id. at 341.

This Court in Caldwell recognized “the qualitative

difference of death from all other punishments requires

a correspondingly greater degree of scrutiny of the

capital sentencing determination.” Id. at 329 (quoting

California v. Ramos, 463 U.S. 992, 998-99 (1983)).

Accordingly, “many of the limits that this Court has

placed on the imposition of capital punishment are

rooted in a concern that the sentencing process should

facilitate the responsible and reliable exercise of sentencing discretion.” Id. (citing Eddings v. Oklahoma,

455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586

(1978) (plurality opinion); Gardner v. Florida, 430

U.S. 349 (1977) (plurality opinion); Woodson v. North

Carolina, 428 U.S. 280 (1976)).

Caldwell and Hurst v. Florida, 136 S. Ct. 616 (2016),

established a clear constitutional mandate that a

death sentence may only be imposed by a properly

8

instructed jury, not a judge. Yet, the Florida Supreme

Court has persisted in rejecting claims by capital

defendants whose sentences were imposed in plain

violation of Hurst and Caldwell. Beginning with Pope

v. Wainwright, 496 So. 2d 798 (Fla. 1986), the Florida

Supreme Court refused to apply Caldwell on the theory

that Florida’s instructions accurately described the

jury’s “merely” advisory nature, whereas in Caldwell,

the jury was told incorrectly that its role was only

advisory under the applicable state law. Id. at 805.

The Florida Supreme Court found “nothing erroneous

about informing the jury of the limits of its sentencing

responsibility,” so as to “relieve some of the anxiety felt

by jurors impaneled in a first-degree murder trial.” Id.

The Florida Supreme Court reaffirmed that erroneous

view in Combs v. Florida, 525 So. 2d 853, 856 (Fla.

1998). But those decisions misread Caldwell, which

held, in no uncertain terms, that advisory jury instructions violate the Eighth Amendment.

This Court has intervened multiple times to correct

the Florida Supreme Court’s refusal to adhere to the

constitutional requirements for capital sentencing.

See pp. 15-17, infra. In Hurst, this Court struck down

Florida’s capital sentencing scheme as unconstitutional, precisely because juries did not fulfill their

constitutionally mandated role as fact-finders. Hurst

made clear that the jury is required to find each

element necessary to impose a death sentence, and to

weigh the aggravating and mitigating circumstances.

And Hurst went further, observing that a jury that

makes death sentencing recommendations under an

advisory regime—like Florida’s prior system—is a constitutional non-entity, the Court held, the equivalent

of “no jury findings.” 136 S. Ct. at 622.

9

The jury in petitioner’s case utilized the unconstitutional advisory process invalidated in Hurst. No

evidence exists that the jury made any of the requisite

findings of fact that could support a constitutional

death sentence. Replicating the practice followed in

essentially all of Florida’s pre-Hurst cases, the jurors

in petitioner’s case were repeatedly told that their

recommendation was advisory and that the final

sentencing decision rested solely with the judge.2

Petitioner’s jurors recommended death having been

informed “that the responsibility for determining the

appropriateness of the defendant’s death sentence lies

elsewhere.” Caldwell, 472 U.S. at 328-29.

Here, the trial judge informed the jury of its

diminished advisory role. That the judge himself

emphasized the jury’s mere advisory status makes this

an even clearer Eighth Amendment violation than in

Caldwell, where the prosecutor told the jury in his

closing arguments that it played only an advisory role.

Arguments by prosecutors are “likely to be viewed as

the statements of advocates,” whereas jury instructions are likely “viewed as definitive and binding

statements of the law.” Boyde v. California, 494 U.S.

2

In fact, as the following excerpts from the proceedings below

suggest, the trial court and the State regarded the jury’s role as

minimal in importance – focusing on the potential impact of a

drawn out penalty phase on one juror’s pre-arranged vacation

plans instead of on petitioner’s constitutional rights.

State: I am just concerned about the consumption of time

because of Miss Gleason’s plane ticket, if there is any way – it

occurred to me last night that only [sic] has she sunk money into

a plane ticket, but if she is going to a class reunion, she has sunk

money into that as well. Tr. 2305:6-13.

State: [W]e need to advise Miss Gleason to drive very carefully.

We have a note which hopefully will cover her in case she misses

her flight.” Tr. 2671:8-13.

10

370, 384 (1990). As this Court has recognized, “[t]he

influence of the trial judge on the jury is necessarily

and properly of great weight, and jurors are ever

watchful of the words that fall from him. Particularly

in a criminal trial, the judge’s last word is apt to be the

decisive word.” Bollenbach v. United States, 326 U.S.

607, 612 (1946) (citations omitted).

Stripped of the heavy burden of being the final

arbiter of life and death, the jurors in this case

recommended that petitioner be sentenced to death.

The advisory sentence taints the sanctity of the jury’s

role as fact-finder in our criminal justice system

and as the final arbiter of capital sentencing. Hurst

and Caldwell have made clear that an advisory jury

recommendation for a death sentence is a nullity and

cannot constitutionally serve as the basis for capital

punishment.

B. The Florida Supreme Court’s Per Se

Harmless Error Rule Violates the Eighth

Amendment and This Court’s Precedents

In ongoing defiance of this Court’s mandates, the

Florida Supreme Court continues to deny resentencing to defendants who, like petitioner, were sentenced

to death by a judge rather than a jury, whenever the

jury unanimously gave an advisory recommendation

to impose the death penalty. Florida has followed the

same mechanical approach in every single capital case

where the pre-Hurst advisory jury’s recommendation

was unanimous, concluding only on the basis of the

jury’s unanimity that any Hurst error was harmless.

The well-established “harmless error” standard

requires the government to prove “beyond a reasonable doubt” that the error complained of did not

contribute to the verdict. See, e.g., Chapman v.

11

California, 386 U.S. 18 (1967). Here, the Florida

Supreme Court conducted no meaningful harmless

error analysis at all. Rather, with minimal analysis,

the Florida Supreme Court simply applied a per se

rule that any Hurst error was harmless because the

jury provided a unanimous advisory recommendation

for the death penalty. Pet. App. 3a. But unanimity

cannot serve as a legally-dispositive proxy for individual fact-finding demonstrating that an error was

harmless. If that were true, no unanimous criminal

verdict could be dislodged due to constitutional error.

Chapman obviously refutes that notion. The Court

should end this erroneous practice once and for all.

Here, a unanimous recommendation is still

advisory, and therein lies the problem. A vote of a preHurst advisory jury cannot be dispositive. Consistent

with the principles of Caldwell, no court can be certain

beyond a reasonable doubt that, absent Hurst error, a

jury would have recommended death. It is far from

predetermined that a jury who grasped its critical role

as an arbiter of life and death would have found all the

elements justifying imposition of the death penalty to

be satisfied. Indeed, a jury properly instructed on its

role may have viewed the proceedings and its own

duties through an entirely different lens.

Even if the jury had made all the necessary factual

findings to support imposition of a death sentence—a

fact unknowable from a final vote alone—the same

sentence would not necessarily have followed. The

jury may have differed on the weight to be given to

aggravating and mitigating circumstances. Or, if

instructed on their proper role as the final decisionmaker, the jury may have opted for a life sentence.

That is why this Court has held that advisory jury

verdicts are inherently unreliable. See Woodson, 428

12

U.S. at 305 (“[T]here is a . . . need for reliability in the

determination that death is the appropriate punishment in a specific case.” (emphasis added)). The

absence of reliability, in turn, infects the capital

sentencing system with an arbitrariness that is

fundamentally at odds with constitutional protections.

See Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (“[I]f

a State wishes to authorize capital punishment it has

a constitutional responsibility to tailor and apply its

law in a manner that avoids arbitrary and capricious

infliction of the death penalty.”).

Empirical research refutes the Florida Supreme

Court’s assumption that unanimity is a proxy for harmlessness. Rather, a jury’s analysis and description of

their duties is deeply affected by the responsibility

they bear for the ultimate sentence. See, e.g., Am. Bar

Assoc., Evaluating Fairness and Accuracy in State

Death Penalty Systems: The Florida Death Penalty

Assessment Report vii n.24 (Sept. 2006) (ABA Report)3

(citing William J. Bowers et al., The Decision Maker

Matters: An Empirical Examination of the Way the

Role of the Judge and Jury Influence Death Penalty

Decision-Making, 63 Wash. & Lee L. Rev. 931, 954-62

(2006)). Interviews with Florida jurors conducted

through the Capital Jury Project (“CJP”) yielded

narrative accounts that highlight how Florida’s preHurst advisory jury system diminished the jurors’

view of their role in the capital sentencing process.

See Bowers, 63 Wash. & Lee L. Rev. at 961-62. Florida

jurors relayed to researchers their understanding that

“[w]e don’t really make the final decision . . . we would

give our opinion but the choice would be up to

the judge.” Id. at 961. One Florida juror told CJP

3

See https://bit.ly/2vS5Mu7.

13

researchers that “the fact that you could make a

recommendation, that you didn’t make a yes or no,

that someone else would make the decision, I think

that let us feel off the hook.” Id. The same juror noted

that he found the pre-Hurst sentencing process to

be “not as traumatic as deciding [the defendant’s]

guilt because we would take the steps, make a

recommendation, and the judge would make the final

choice.” Id. As another Florida juror said of Florida’s

pre-Hurst advisory jury instructions, “I didn’t want

this on my conscience.” Id.4

Perhaps most emblematic of the issue is the Florida

Supreme Court’s own acknowledgement through its

2009 amendment of the capital penalty-phase instructions. See In re Standard Jury Instructions in Criminal

Cases—Report No. 2005-2, 22 So. 3d 17 (Fla. 2009) (per

curiam). The court recognized that Florida’s capital

penalty-phase jury instructions caused substantial

confusion for juries necessitating revised instructions

addressed at “minimiz[ing] the likelihood of confusion

concerning the jury’s critical role in Florida’s capital

sentencing scheme.” Id. at 19. The court believed it

could remedy jury confusion through “re-ordering of

4

In addition, the ABA Report underscored the extent of juror

confusion in relation to capital sentencing recommendations. See

ABA Report 304 (“[A]lthough the standard jury instructions

clearly state that unlike aggravating circumstances, mitigating

circumstances need not be proven beyond a reasonable doubt, and

if the jury is reasonably convinced of the existence of a mitigating

circumstance, they may consider it established, 48.7 percent of

interviewed Florida capital jurors believed that the defense had

to prove mitigation factors beyond a reasonable doubt.” (footnote

omitted)); see also id. at 304-305 (noting that “[a]pproximately

36% of interviewed Florida capital jurors believed that they were

required to sentence the defendant to death if they found the

defendant’s conduct to be ‘heinous, vile, or depraved’ beyond a

reasonable doubt”).

14

the[] instructions,” adding definitions, and amending

explanatory language. Id. at 22. This modification,

however, did not address the more fundamental

issue: the absence of constitutionally-required, specific

findings of fact on aggravating circumstances, and

the weighing of mitigating circumstances. Without

that critical information, a reviewing court cannot

meaningfully rely on an advisory recommendation,

irrespective of whether it is unanimous. As Justice

Pariente stated, a sentencing recommendation from a

confused jury is akin to “fishing in the dark.” Id.

(quoting LeBron v. Florida, 982 So. 2d 649, 671 (Fla.

2008) (Pariente, J., concurring)).

Reliance by the Florida Supreme Court on the

unanimous advisory verdict to deem the constitutional

error here harmless is the very problem that concerns

amici. The bare verdict form used over petitioner’s

objection, reveals no constitutionally-required factfinding whatsoever, and therefore could not reasonably have formed the basis of a constitutional death

sentence. Tr. 2327-28. The court’s mechanical

reliance on unanimity is fundamentally misplaced.

C. The Florida Supreme Court’s Per Se Rule

Is at Odds with Sullivan v. Louisiana

The grave Eighth Amendment concerns implicated

by the Florida Supreme Court’s per se rule were the

subject of previous sections. That is not the end of the

inquiry, however, as the rule also presents significant

Sixth Amendment concerns.

In Sullivan v. Louisiana, 508 U.S. 275 (1993), this

Court unanimously held, in an opinion by Justice Scalia,

that even though the jury had rendered a decision on

each element of the offense, the trial court’s improper

instruction on the beyond-a-reasonable-doubt standard

15

“vitiate[d] all the jury’s findings.” Id. at 281. This

defect meant that, for purposes of harmless-error

review, “there has been no jury verdict within the

meaning of the Sixth Amendment.” Id. at 280.

Under Sullivan, an advisory jury recommendation

is not a verdict under the Sixth Amendment because

the jury did not find any of the requisite facts needed

to support a death sentence. Florida’s advisory juries

also were given a defective instruction, which vitiated

each element for a constitutional death sentence

under state law. As in Sullivan, without a constitutionally cognizable jury verdict, “the entire premise of

Chapman review is simply absent.” Id. Under

Sullivan, an advisory jury recommendation is a nullity

for purposes of the Sixth Amendment.

The Florida Supreme Court’s per se harmless error

rule cannot be reconciled with this principle, as the

death sentence here was based entirely on an unconstitutional vote of an advisory jury. Accordingly, as in

Sullivan, petitioner’s death sentence is substantively

infirm, and not merely the byproduct of a procedural

error.

D. To Avoid Repeating the Injustices of the

Past, the Questions Presented by the

Petition Should Be Decided Sooner Rather

Than Later

The petition’s constitutional arguments are both

compelling and urgent. Amici are concerned that the

failure to grant relief now will further compound the

same widespread, irreparable injustices that many of

16

them have lived through during their recent decades

on the Florida bench.5

Florida’s past history demonstrates that its capital

jurisprudence has remained at odds with this Court’s

precedents, and that the Florida Supreme Court has

repeatedly held fast to unconstitutional procedures,

affirmed unconstitutional death sentences, and ultimately executed individuals convicted and sentenced

under unconstitutional past regimes, before this Court

intervened. In multiple instances, it was only through

this Court’s intervention that the Florida Supreme

Court adopted capital sentencing reforms that complied

with constitutional requirements. It took nine years

for the Florida Supreme Court to heed the Court’s

decision in Lockett v. Ohio, 438 U.S. 586 (1978),

dictating that mitigating circumstances could not be

confined to a statutory list. The Florida Supreme

Court continued to apply its bright-line rule barring

relief in cases where the jury was not instructed it

5

As former Florida Supreme Court Chief Justice Anstead

observed in Bottoson v. Moore, 833 So. 2d 693 (2002) (per curiam),

“the plurality opinion has chosen to retreat to the ‘safe harbor’ of

prior United States Supreme Court decisions upholding Florida’s

death penalty scheme. That may well be the ‘safe’ option since it

will require the Supreme Court to act affirmatively to explain its

prior holdings in light of Apprendi [v. New Jersey, 530 U.S. 466

(2000)] and Ring. However, when one examines the holdings of

Ring and Apprendi and applies them in a straightforward

manner to a Florida scheme that requires findings of fact by a

judge and not a jury, it is apparent that the harbor may not be all

that safe.”); see also Duest v. Florida, 855 So. 2d 33, 57 (Fla. 2003)

(per curiam) (“I continue to view Ring as the most significant

death penalty decision from the U.S. Supreme Court in the past

thirty years and believe we, like the Arizona Supreme Court, are

honor bound to apply Ring’s interpretation of the requirements of

the Sixth Amendment to Florida’s death penalty scheme.”

(Anstead, C.J., concurring in part and dissenting in part)).

17

could consider non-statutory mitigating evidence until

this Court mandated otherwise. See Hitchcock v.

Dugger, 481 U.S. 393 (1987) (Justice Scalia writing for

unanimous Court); see also 2 Randy Hertz & James

S. Liebman, Federal Habeas Corpus Practice and

Procedure 2073 n.50 (6th ed. 2011) (estimating that 13

inmates who had presented the issue to this Court

were executed before certiorari was granted). It took

12 years before the Florida Supreme Court was

stopped from using its unconstitutional bright-line IQ

score test to deny Atkins claims (Atkins v. Virginia,

536 U.S. 304 (2002)) even though this Court affirmatively ruled that the Eighth Amendment prohibits

execution of the intellectually disabled. See Hall v.

Florida, 572 U.S. 701 (2014). And, of course, the

present situation arises because Hurst again struck

down Florida’s capital sentencing regime 14 years

after this Court held in Ring, that a jury—not a

judge—must conduct the fact-finding underlying a

death sentence. See Hurst, 136 S. Ct. 616.

In the nearly decade and a half between Ring and

Hurst, the Florida Supreme Court repeatedly rejected

Ring claims. By the time Hurst was decided, hundreds

of inmates—alive and dead—had been subjected to the

unconstitutional procedure. In fact, during the long

delay between Ring and Hurst, Florida has executed

41 individuals under an unconstitutional statutory

scheme, nearly half of the total number of individuals

executed by the State since 1976.6 Applying its per se

harmless error analysis to unconstitutional sentences,

the Florida Supreme Court risks further expanding

the class of individuals who will be executed based on

constitutionally infirm sentences. Where death is

6

Death Penalty Info. Ctr., Execution Database, https://bit.ly/

2Q0Ce6G (last visited May 12, 2019).

18

concerned, this Court should not condone the Florida

Supreme Court’s refusal to remedy its unconstitutional status quo. Hurst’s and Caldwell’s dictates

should be followed without further delay.

CONCLUSION

Amici therefore ask this Court to grant the Petition

for Writ of Certiorari.

Respectfully submitted,

ARDITH BRONSON

MAIA SEVILLA-SHARON

DLA PIPER LLP (US)

200 S. Biscayne Blvd.

Suite 2500

Miami, FL 33131-5341

(305) 423-8562

ardith.bronson@

dlapiper.com

maia.sevillasharon@

dlapiper.com

ILANA H. EISENSTEIN

Counsel of Record

DLA PIPER LLP (US)

One Liberty Place

1650 Market St.

Suite 5000

Philadelphia, PA 19103

(215) 656-3300

ilana.eisenstein@

dlapiper.com

Counsel for Amici Curiae

May 16, 2019