Opposition Brief — Jason Dirk Walton, Petitioner v. Florida, et al.

APPENDIX A

Filing # 57467137 E-Filed 06/08/2017 02:43:51 AM

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC17-

JASON DIRK WALTON.,

Petitioner,

v.

JULIE L. JONES,

Secretary, Florida Department of Corrections,

Respondent.

PETITION FOR WRIT OF HABEAS CORPUS

MARTIN J. McCLAIN

Fla. Bar No. 0754773

BRYAN MARTINEZ

Staff Attorney

Fla. Bar No. 0119286

Capital Collateral Regional

Counsel—South

1 E. Broward Blvd, Suite 444

Ft. Lauderdale, FL 33301

954.713.1284

martymcclain(@earthlink.net

RECEIVED, 06/08/2017 02:48:30 AM, Clerk, Supreme Court

COUNSEL FOR PETITIONER

INTRODUCTION

On March 13,2017, Chapter 2017-1 became law. It revised Florida’s capital

sentencing statute, § 921.141, Fla. Stat. As revised, § 921.141 now provides that a

defendant convicted of first degree murder cannot receive a death sentence unless

the State convinces a jury to return a unanimous death recommendation. Before it

can return a unanimous death recommendation, the jury must first “identify[] each

aggravating factor” that it has unanimously found proven beyond a reasonable

doubt. See § 921.141(2)(b). Next, the jury must unanimously find that the

aggravating factors that it unanimously found to exist are sufficient to justify a

sentence of death. Then, the jury must unanimously find that “aggravating factors

exist which outweigh the mitigating circumstances found to exist.” See §

921.141(2)(b)(2). Finally, having made these unanimous findings, the jurors must

then unanimously vote in favor of recommending a death sentence. Only if the

jury has returned a unanimous death recommendation, is a judge authorized under

§ 921.141 to impose a death sentence.

Due to legislative intent, the substantive right that a defendant convicted of

first degree murder receives under Chapter 2017-1 will apply retrospectively, i.e.

to first degree murder prosecutions in which the homicide at issue occurred before

the March 13, 2017 enactment of Chapter 2017-1. This means that defendants

convicted of first degree murder before the enactment of Chapter 2017-1 who now

receive a resentencing will have the right to a life sentence unless the jury

unanimously recommends a death sentence even if the first degree murder

convictions were final in 1982, 1984, or 1985.

A resentencing has been order for William White whose first degree murder

conviction became final in 1982, and has remained intact ever since. White v.

State, 415 So. 2d 719 (Fla. 1982), cert denied, 459 U.S. 1155 (1982). The

resentencing was recently ordered by a circuit court. Though the State filed a

notice of appeal, it has since filed a notice of voluntary dismissal of its appeal.

See White v. State, Case No. SC17-995. A resentencing has also been ordered for

James Card whose first degree murder conviction became final in 1984, and has

remained intact ever since. This Court recently vacated his death sentence and

ordered the resentencing. Card. Jones, So.3d_, 2017 WL 1743835 (Fla. May 4,

2017). And, a resentencing has been ordered for J.B. Parker whose first degree

murder conviction became final in 1985. Parker v. State, 476 So. 2d 134 (Fla.

1985). The resentencing was recently ordered by a circuit court. While the State

did file an appeal, it later filed a notice of voluntary dismissal of its appeal. See

Parker v. State, Case No. SC17-794. At the resentencings for White, Card and

Parker, the issue will be what sentence to impose on their first degree murder

convictions that were final in the early 1980's. Because Chapter 2017-1 will apply

retrospectively at the resentencings, White, Card and Parker will have the

substantive right to life sentences unless their resentencing juries return

unanimous death recommendations. This substantive right will operate much like

the right to a presumption of innocence that attaches to a criminal defendant who

is charged with a criminal offense, except here it attaches to defendants at the time

a first degree murder conviction is entered.

As it appears now, the substantive right to a presumption of a life sentence

unless a jury unanimously returns a death recommendation will attach to all first

degree murder convictions regardless of the date of conviction, so long as any

death sentence previously imposed was not final prior to June 24, 2002. Even then

if for any reason the previously imposed death sentence is vacated and a

resentencing order, the convicted defendant will be able to exercise his substantive

right to life sentence unless the State convinces a jury to return a unanimous death

recommendation.

In operation, this means similarly situated defendants will be treated

differently. When William White is sentenced on his 1982 first degree murder

conviction, he will have a presumption of life unless the jury unanimously returns

a death recommendation. When James Card is sentenced on his 1984 first degree

murder conviction, he will have a presumption of life unless the jury unanimously

returns a death recommendation. When J.B. Parker is sentenced on his 1985 first

degree murder conviction, he will have a presumption of life unless the jury

returns a unanimous death recommendation. But as to Mr. Walton’s 1986 first

degree murder conviction, he will only receive a presumption of life if his

previously imposed death sentence is vacated and a resentencing is ordered.

Mr. Walton’s first degree murder convictions became final in February of

1986 when this Court denied rehearing after it had affirmed his first degree murder

convictions, while vacating his death sentences and ordering a new penalty phase.

Walton v. State, 481 So. 2d 1197 (Fla. 1985). Mr. Walton’s first degree murder

convictions were final 27 months after White’s first degree murder conviction was

final, 15 months after Card’s first degree murder conviction was final, and 4

months after Parker’s first degree murder conviction was final. Thus, Mr. Walton,

William White, James Card and J.B. Parker were all convicted of the same

criminal offense, first degree murder. Their convictions have been final since the

early and mid 1980's, with the finality date of Mr. Walton’s conviction being the

most recent. Despite having been convicted of first degree murder before Mr.

Walton was, White, Card and Parker are now to be given a right to a life sentence

unless a jury unanimously recommends death, while the right is not extended to

Mr. Walton on his later on his later in time convictions.

At issue here is whether it is constitutional for the State of Florida to extend

to White, Card and Parker the substantive right to a life sentence unless a jury

unanimously recommends a death sentence, and not extend the same substantive

right to Mr. Walton when all four men were convicted of the same offense.

Florida statutory law now precludes the imposition of a death sentence

unless a jury unanimously returned a death recommendation. The change from an

advisory recommendation by a majority vote to a unanimity requirement before a

death sentence is authorized reflects a decision to increase the reliability of

resulting death sentences. In Mr. Walton’s case, his resentencing jury did not

return unanimous death recommendations. Instead, the jury returned three 9-3

death recommendations. That means that his death sentences are less reliable and

do not meet the reliability standard under today’s retrospective substantive law. As

aresult, Mr. Walton’s death sentences can no longer be allowed to stand.

JURISDICTION TO ENTERTAIN PETITION

AND GRANT HABEAS CORPUS RELIEF

This is an original action under Fla. R. App. P. 9.100(a). See Art. 1, Sec. 13,

Fla. Const. The petition presents issues which concern the continued viability and

constitutionality of Walton’s death sentences. The Florida Constitution guarantees

that “[t]he writ of habeas corpus shall be grantable of right, freely and without

cost.” Art. I, § 13, Fla. Const. Pursuant to Fla. R. App. P. 9.030(a)(3) and Article

V, § 3(b)(9), Fla. Const., this Court has original jurisdiction.

In its jurisdiction to issue writs of habeas corpus, this Court has an

obligation to protect Walton's rights under the Florida Constitution to be free from

cruel or unusual punishment and it has the power to enter orders assuring that

those rights are protected. Allen v. State, 636 So. 2d 494, 497 (Fla. 1994); Shue v.

State, 397 So. 2d 910 (Fla. 1981); Makemson v. Martin County, 491 So. 2d 1109

(1986). This Court must protect Walton’s Sixth, Eighth and Fourteenth

Amendment rights under the United States Constitution. Where state or federal

constitutional rights are concerned, this Court may not abdicate its responsibility

in deference to the legislative or executive branches of government. Rose v. Palm

Beach City, 361 So. 2d 135, 137 n.7 (1978). This Court is required to exercise its

independent power of judicial review. Ford v. Wainwright, 477 U.S. 399 (1986).

This Court has recently exercised its habeas jurisdiction to vacate death sentences

that no longer comported with either the United States Constitution or the Florida

Constitution. Hertz v. Jones, So. 3d _, 2017 WL 2210402 (Fla. May 18, 2017);

Hernandez v. Jones, So. 3d _, 2017 WL 1954985 (Fla. May 11, 2017); Card.

Jones, So. 3d _, 2017 WL 1743835 (Fla. May 4, 2017); Brooks v. Jones, 2017

WL 944235 (Fla. March 10, 2017).

PROCEDURAL HISTORY

On March 2, 1983, Mr. Walton and three co-defendants were indicted in

Pinellas County on three counts of first degree murder arising from the shooting

deaths of three men whose bodies had been discovered in a Highpoint residence

on June 18, 1982. Mr. Walton was tried in February of 1984. He was found guilty

as charged on all three first degree murder counts. The jury returned advisory

death recommendation, and the judge imposed three death sentences.

On December 19, 1985, this Court affirmed Mr. Walton’s convictions, but

vacated his death sentences. A new penalty phase was ordered because the

admission of out-of-court statements by Cooper and McCoy violated Mr. Walton’s

constitutional right of confrontation. Walton, 481 So. 2d at 1200. Rehearing was

denied on February 19, 1986.

On remand, the State chose to again seek death sentences for Mr. Walton.

On August 14, 1986, the resentencing jury returned advisory death

recommendations by a vote of 9 to 3. Three of Mr. Walton’s resentencing jurors

voted in favor of life sentences on all three murder counts. On August 29, 1986,

the presiding judge followed the jury's 9-3 death recommendation and imposed

three death sentences.

Mr. Walton’s second direct appeal followed. Though error was found in the

resentencing proceedings, this Court ruled the error was harmless and affirmed the

imposition of three death sentences. Walton v. State, 547 So. 2d 622, 625 (Fla.

1989).

In the collateral proceedings that followed, additional errors and defects in

the resentencing proceedings were acknowledged, but found either insufficiently

prejudicial or procedurally barred. Accordingly, no collateral relief was

forthcoming despite the recognized errors. See Walton v. State, 847 So. 2d 438

(Fla. 2003); Walton v. Crosby, 859 So. 2d 516 (Fla. 2003); Walton v. State, 3 So..

3d 1000, 1008 (Fla. 2009); Walton v. State, 77 So. 3d 639, 643 (Fla. 2011).

In May of 2015, Mr. Walton filed a successive Rule 3.851 motion on the

basis of the life sentences that his co-defendant, Richard Cooper, received in May

of 2014. After the circuit court found that the newly discovered evidence met the

first prong of the Jones v. State standard for reviewing such claims, it denied relief

finding that the second prong was not satisfied. Mr. Walton’s appeal of that order

is pending before this Court and more fully discussed in the Amended Initial Brief

filed in Walton v. State, Case No. SC16-448, on June 2, 2017.’

'The Initial Brief that Mr. Walton filed in that case on May 15, 2017 was

struck because it exceeded 75 pages. In that Initial Brief, Mr. Walton had included

the claim that is being presented in this petition as an argument. After the brief

8

BASIS FOR HABEAS CORPUS RELIEF

CLAIM

THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND THE FLORIDA

CONSTITUTION, REQUIRE MR. WALTON RECEIVETHE

RETROACTIVE APPLICATION OF THE SUBSTANTIVE

RIGHT ESTABLISHED BY CHAPTER 2017-1, WHICH

PRECLUDES THE IMPOSITION OF A DEATH SENTENCE

UNLESS A JURY UNANIMOUSLY RETURNS A DEATH

RECOMMENDATION AND ENHANCES RELIABILITY.

A. The road to Chapter 2017-1.

With the March 7, 2016, enactment of Chapter 2016-13, a substantive right

was Statutorily created - a capital defendant in Florida for the first time was given

the right to a life sentence unless 10 of 12 jurors voted to recommend a death

sentence.” See Perry v. State, 210 So. 3d 630, 638 (Fla. 2016) (“The changes

was struck, Mr. Walton realized that because the claim herein concerning the

March 13, 2017 enactment of Chapter 2017-1 had not been before the circuit court

in the Rule 3.851 proceedings, it could, and perhaps should, be presented to this

Court in a petition for a writ of habeas corpus. This Court’s recent rulings in Hertz

v. Jones, Hernandez v. Jones, Card v. Jones, and Brooks v. Jones clearly show that

a habeas petition is viable way to present the claim. When Mr. Walton filed his

Amended Initial Brief in Case No. SC16-488, he omitted the argument that is now

presented in this petition.

Previously, the statute provided that a jury would return an advisory

sentencing recommendation. For the jury’s verdict to constitute a death

recommendation, seven of the twelve jurors had to vote in favor of the death

recommendation. Because the jury’s recommendation was advisory, it was not

binding on the judge. Just because a jury returned a life recommendation did not

9

further mandate that a life sentence be imposed unless ten or more jurors vote for

death.”’). Chapter 2016-13 rewrote § 921.141, and eliminated a judge’s ability to

override a jury’s life recommendation. This meant a defendant was entitled to a

life sentence unless ten or more jurors voted to return a death recommendation.

Stated another way, the statute created a presumption in favor of a life sentence

that could only be overcome if ten or more jurors voted to recommend a death

sentence. Prior to the enactment of Chapter 2016-13, a defendant did not have a

right to a life sentence even if the jury returned a life recommendation. There was

no presumption in favor of a life sentence that the State was required to overcome

when seeking the imposition of a death sentence.

On October 14, 2016, this Court issued Hurst v. State, 202 So. 3d 40 (Fla.

2016). There, this Court found that the Florida Constitution guarantee to trial by

jury in criminal cases included a right to a unanimous verdict. A defendant was

and is presumed innocent until a unanimous jury returns a guilty verdict

unanimously finding the elements of the criminal offense were proven. Based

upon this right under the Florida Constitution, this Court concluded that a jury in

the penalty phase of a capital case had to unanimously find all of the statutorily

mean that the defendant was entitled to a life sentence on his first degree murder

conviction. See Marshall v. State, 604 So. 2d 799 (Fla. 1992).

10

defined facts that were necessary to authorize the imposition of a death sentence.

Hurst v. State, 202 So. 3d at 44 (“We reach this holding based on the mandate of

Hurst vy. Florida and on Florida's constitutional right to jury trial, considered in

conjunction with our precedent concerning the requirement of jury unanimity as to

the elements of a criminal offense.”’).

At the same time that Hurst v. State issued, this Court issued Perry v. State.

On the basis of Hurst v. State, this Court in Perry v. State found the 10-2 provision

in Chapter 2016-13 unconstitutional under the Florida Constitution. In order to be

constitutional, the jury findings required in Chapter 2016-13 had to be found

unanimously. Findings made by ten of twelve jurors did not comport with the

Florida Constitution.

As to the remainder of Chapter 2016-13, this Court found it to be

constitutionally valid. This Court specifically recognized that Chapter 2016-13

was intended to be applied retrospectively to all pending homicide prosecutions

including those in which the homicide had occurred prior to March 7, 2016, the

date Chapter 2016-13 was enacted. This Court observed that such retrospective

application was proper. Jd. at 635 (“we conclude that ... most of the provisions of

the Act can be construed constitutionally and could otherwise be validly applied to

pending prosecutions”). See Evans v. State, 213 So. 3d 856 (Fla. 2017).

1]

In Perry v. State, this Court held that the 10-2 provision was not severable.

Under separation of powers as provided by the Florida Constitution, this Court left

it to the Florida Legislature to rewrite the statute in a constitutional fashion.

On March 13, 2017, Chapter 2017-1 was enacted. It was meant to statutorily

fix the defect identified in Perry v. State. The only change made to the revised §

921.141 was to replace the 10-2 provision with one requiring the jury to

unanimously return a death recommendation before a judge was authorized to

impose a death sentence. No change was made to the statute evincing an intent to

retreat from the retrospective application of the rewritten § 921.141.

As aresult, § 921.141 now provides that a defendant convicted of first

degree murder is entitled to a life sentence unless a jury returns a unanimous death

recommendation. Just as a criminal defendants who is charged with a crime is

entitled to a presumption of innocence until a jury returns a unanimous guilty

verdict, a defendant convicted of first degree murder is entitled to a presumption

of a life sentence until a jury returns a unanimous death recommendation.

B. Retrospective or prospective only - how is it determined?

This Court has explained that the standard for determining whether a

decision by this Court or the US Supreme Court is to be applied retroactively does

not apply when the issue concerns the retrospective application of a statutory

12

change in law. Thus, Witt v. State, 387 So. 2d 922 (Fla. 1980), has no application

to the question of whether Mr. Walton should receive the benefit of Chapter 2017-

1. Thompson v. State, 887 So. 2d 1260, 1263-64 (Fla. 2004) (“the question of

retroactivity under Witt is not applicable to this case because we are

examining a change in the statutory law of this state not a change in

decisional law emanating from this Court or the United States Supreme

Court.”’) (emphasis added).

When there is a change in statutory law, there is a presumption that any

substantive change only applies prospectively. “[I]n the absence of clear

legislative intent to the contrary, a law affecting substantive rights is presumed to

apply prospectively.” Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994).

“The general rule is that in the absence of clear legislative intent to the contrary, a

law affecting substantive rights, liabilities and duties is presumed to apply

prospectively.” Metropolitan Dade County v. Chase Federal Housing Corp., 737

So. 2d 494, 499 (Fla.1999).

On the other hand remedial statutes may be applied retrospectively. A

remedial statute is a statute designed to fix a statutory defect. However, a statute

that remedies the statutory defect by establishing a substantive right or imposes

new legal burden is not considered remedial in determining whether to apply it

13

retrospectively. Arrow Air, Inc. v. Walsh, 645 So. 2d at 424 (“we have never

classified a statute that accomplishes a remedial purpose by creating substantive

new rights or imposing new legal burdens as the type of ‘remedial’ legislation that

should be presumptively applied in pending cases.”).

Chapter 2017-1 in conjunction with Chapter 2016-13 clearly do impose a

new legal burden on the State when granting a defendant convicted of first degree

murder the right to a life sentence unless the State convinces a jury to unanimously

recommend a death sentence. The changes made by Chapter 2017-1 and Chapter

2016-13 are clearly substantive in nature. Substantive changes are presumed not to

apply retrospectively unless the legislature intended the newly imposed legal

burden to be extended retrospectively. And here, the legislative intent was clear.

The changes made in Chapter 2017-1 and Chapter 2016-13 were meant to apply

retrospectively, as this Court held in Perry v. State and Evans v. State.

Certainly, the legislature could have provided that the right to a life

sentence unless the jury unanimously voted to recommend a death sentence only

applied in homicide cases in which the homicide was committed after the right

was enacted. But, that was not the legislative intent. Instead, the legislature

intended this right to a life sentence unless the jury unanimously voted to

recommend a death sentence to be extended retrospectively to any defendant

14

charged with a capital homicide that had occurred prior to the enactment of the

right. The legislative intent 1s clear.

C. Substantive rights are a legislative function.

While Hurst v. State and Perry v. State were premised upon the Florida

Constitution, Chapter 2016-13 and Chapter 2017-1 were both crafted by the

Florida Legislature and signed into law by the Governor. This Court has said:

“Generally, the Legislature has the power to enact substantive law, while the Court

has the power to enact procedural law.” Allen v. Butterworth, 756 So. 2d 52, 59

(Fla. 2000). This Court has explained:

Substantive law has been defined as that part of the law which

creates, defines, and regulates rights, or that part of the law which

courts are established to administer. State v. Garcia, 229 So.2d 236

(Fla.1969). It includes those rules and principles which fix and

declare the primary rights of individuals with respect towards their

persons and property. Adams v. Wright, 403 So.2d 391 (Fla.1981).

Haven Federal Savings & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991).

In Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975), this Court reiterated:

Substantive law prescribes the duties and rights under our system of

government. The responsibility to make substantive law is in the

legislature within the limits of the state and federal constitutions.

Pursuant to separation of powers, procedure matters are a judicial function, not a

legislative function. See State v. Raymond, 906 So. 2d 1045, 1049 (Fla. 2005)

(“where there is no substantive right conveyed by the statute, the procedural

15

aspects are not incidental; accordingly, such a statute is unconstitutional.”);

Massey v. David, 979 So. 2d 931, 937 (Fla. 2008) (“We have held that where a

statute contains some procedural aspects, but those provisions are so intimately

intertwined with the substantive rights created by the statute, that statute will not

impermissibly intrude on the practice and procedure of the courts in a

constitutional sense, causing a constitutional challenge to fail.”).

If Chapter 2017-1 and Chapter 2016-13 had been purely procedural, they

would have violated the separation of powers doctrine enshrined in the Florida

Constitution. Moreover when this Court determined that the 10-2 provision was

unconstitutional, it could have fixed the defect and rewritten the governing law if

the provision and/or the fix were simply a procedural matter. This Court did not

do that because it recognized that what was at issue was substantive law, i.e. “that

part of the law which creates, defines, and regulates rights.” Garcia v. State, 229

So. 2d at 238. °

>The procedural rule/substantive right dichotomy is important when

analyzing Chapter 2017-1 and Chapter 2016-13. Procedural rules attach to a

proceeding. For example, this Court could announce effective July 1, 2017,

appellants in capital appeals will have thirty days from the date the record on

appeal is filed to submit the initial brief. Another example would be when this

Court amends Rule 3.851 effective on a particular date to change what a motion to

vacate must contain or how many pages in length is permitted. Procedural rules

are promulgated by this Court. They attach to a proceeding, i.e. an appeal, Rule

3.851 proceedings, etc. On the other hand, substantive rights are extended to

16

After Chapter 2017-1, a life sentence results unless the jury unanimously

finds all facts necessary to authorize a judge to impose a death sentence, sets forth

its unanimous findings in a special verdict, and recommends a death sentence. The

jury, aware that each juror has the power to preclude a death sentence by voting to

recommend a life sentence, must unanimously vote in favor of a death sentence

before a judge has the power to impose a death sentence.

This change is not like a procedural rule altering the page limitation on an

initial brief, or changing the time allotted for the submission of an appellate brief.

Nor is it like a pleading requirement that Rule 3.851 motions must identify all the

issues raised on direct appeal. Nor is it like a rule establishing when a case

management hearing on a Rule 3.851 motion must be held.

It is also not like a ruling that substitutes one factfinder for another,

people. Substantive law governs what the State must prove to convict a criminal

defendant of the crime with which he or she has been charged. Substantive law

define the crime of first degree murder established the elements of first degree

murder that the State must prove. A substantive right, for example the right to

counsel, attaches to a person charged with a crime. The presumption of innocence

is a substantive right that is extended to a defendant and can only be overcome if

the State proves guilt beyond a reasonable doubt. The Eighth Amendment right to

present mitigating evidence attaches to a person convicted of first degree murder

when the State seeks to impose a death sentence. Similarly, the right to require the

State to prove aggravating factors beyond a reasonable doubt is also a right that is

extended to a defendant convicted of first degree murder.

17

transferring factfinding duties from a judge to a jury.* What is provided for here is

as substantive as the presumption of innocence or the right to only be convicted

upon proof of guilt beyond a reasonable doubt.

Chapter 2017-1 changes a co-sentencer’s role from rendering an advisory

recommendation by a majority vote to one that imposes upon each individual juror

responsibility for whether it is permissible for the defendant to given a death

sentence. Each juror will know that he or she can preclude a death sentence by not

agreeing to a unanimous death recommendation. The change in the jury’s role and

the necessity of unanimity means that its verdict will be more reliable and more

meaningful in exactly the same way that requiring proof beyond a reasonable

doubt instead of by a preponderance of the evidence makes a criminal defendant’s

‘Unlike the circumstances in Schriro v. Summerlin, 542 U.S. 348 (2004), the

change here is going from an advisory jury recommendation requiring seven of

twelve jurors to vote in favor of an advisory death recommendation, to requiring a

jury to return a unanimous death recommendation before a judge has the power to

impose a death sentence. In Schriro v. Summerlin, 542 U.S. at 355-56, the US

Supreme Court noted that a substantive right that seriously improved accuracy and

reliability would apply retroactively. Going from a majority vote to a unanimous

verdict is akin to go from a proof by a preponderance of the evidence to proof

beyond a reasonable doubt. It is change that is designed to make a decision to

impose a death sentence more reliable. See Addington v. Texas, 441 U.S. 418, 423

(1979) (“The function of a standard of proof, as that concept is embodied in the

Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder

concerning the degree of confidence our society thinks he should have in the

correctness of factual conclusions for a particular type of adjudication.’”)

18

Sixth Amendment rights stronger and more meaningful. As Justice Harlan once

observed, in an ordinary civil suit a preponderance standard “seems peculiarly

appropriate” because “we view it as no more serious in general for there to be an

erroneous verdict in the defendant's favor than for there to be an erroneous verdict

in the plaintiff's favor,” while in the criminal context requiring proof beyond a

reasonable doubt is proper because the “social disutility” of convicting an

innocent person is greater than that of acquitting a guilty person. In re Winship,

397 U.S. 358, 371-72 (1970). ,

If Chapter 2017-1 were merely procedural (besides being enacted in

violation of the separation of powers doctrine), it would be proper for it to attach

to any capital sentencing proceeding conducted after its effective date because it

only sets out the manner by which the parties should seek to litigate. State v.

Raymond, 906 So. 2d at 1048 (“practice and procedure is the method of

conducting litigation involving rights and corresponding defenses.”’).

However, Chapter 2017-1 does more than that. It imposes an obligation on

the State to convince the jury to make unanimous findings of fact and return a

unanimous death recommendation. It gives a defendant convicted of first degree

murder something that he or she did not have before: a right to a life sentence

unless the jury returns a unanimous death recommendation. Quite clearly, Chapter

19

2017-1 precludes the imposition of a death sentence unless the State bears its

burden and convinces the jury to return a unanimous death recommendation.

Chapter 2017-1 sets forth a substantive right that is personal in that it

belongs to someone. For example, the Sixth Amendment right to representation by

counsel attaches to a defendant who is criminal charged. A substantive right is

person, it attaches to a person. Clearly, the right to a life sentence unless the jury

unanimously returns a death recommendation is given to a defendant who is

convicted of first degree murder. It arises from the conviction for first degree

murder. It is a presumption of a life sentence, and it is very much akin to the

presumption of innocence because it reflects the State’s legal burden in the

criminal process.

The change in law that Chapter 2017-1, and its predecessor Chapter 2016-

13, brought about can best be understood by looking at what was replaced. Before

March 7, 2016, Florida’s capital sentencing scheme provided for a jury to return

an advisory verdict by a majority vote, and then for the judge to consider the

advisory verdict and impose a sentence. Under the Eighth Amendment, the jury

and the judge were co-sentencers. Espinosa v. Florida, 505 U.S. at 1083 (“We

merely hold that, if a weighing State decides to place capital sentencing authority

in two actors rather than one, neither actor must be permitted to weigh invalid

20

aggravating circumstances.”); Lambrix v. Singletary, 520 U.S. 518, 528 (1997)

(“In Espinosa, we determined that the Florida capital jury is, in an important

respect, a cosentencer with the judge.”). For its part, the jury did not identify what

if any facts had been found, let alone explain how many jurors found any

particular fact. If six jurors voted to recommend a life sentence that constituted a

life recommendation that a judge could override to impose a death sentence if the

life recommendation was unreasonable.

The substantive nature of the changes made by Chapter 2017-1 and Chapter

2016-13 was recognized in State v. Steele, 921 So. 2d 538 (Fla. 2005). There, this

Court asked the legislature to review whether jury unanimity should be required

for death recommendations. This Court clearly viewed the issue as a substantive

one, not a procedural one. /d. at 548 (Finally, we express our considered view, as

the court of last resort charged with implementing Florida's capital sentencing

scheme, that in light of developments in other states and at the federal level, the

Legislature should revisit the statute to require some unanimity in the jury's

recommendations.”). Because the issue was substantive and not procedural, this

Court was not free to rewrite the statute.

Chapter 2016-13 initially established a retrospective substantive right that a

capital defendant had a right to a life sentence if three or more jurors voted in

21

favor of a life sentence. See Perry v. State, 210 So. 3d at 638 (“The changes

further mandate that a life sentence be imposed unless ten or more jurors vote for

death.”). Then this Court in Hurst v. State determined the facts statutorily

necessary to authorize a death sentence were in essence elements of an offense and

under the Florida Constitution had to be found by a unanimous jury. On the basis

of the ruling in Hurst v. State, the 10-2 provision of Chapter 2016-13 was declared

unconstitutional. In Chapter 2017-1 the Florida Legislature rewrote the statute to

provide that a defendant convicted of first degree murder was to receive a life

sentence unless a jury returned a unanimous death recommendation. The

substantive right created in Chapter 2016-13 was expanded. One juror voting for a

life recommendation precluded the imposition of a death sentence. The right was

extended to defendants in all homicide prosecutions regardless of the date of the

underlying homicide, and regardless of the date that the conviction became final.

D. Thesubstantive right to juror unanimity is meant to enhance reliability.

Chapter 2016-13 first eliminated the judicial override and established that a

defendant convicted of first degree murder was entitled to a life sentence unless

and until at least 10 jurors voted to recommend a death sentence. Subsequently,

this Court in Hurst v. State concluded that the jury had to be unanimous when

22

making the findings of fact necessary for the imposition of a death sentence.’ In

reaching this result, the unanimity requirement was recognized as a major step

forward in enhancing the reliability of any decision to impose death. Hurst v.

State, 202 So. 3d at 58 (“In requiring jury unanimity in these findings and in its

final recommendation if death is to be imposed, we are cognizant of significant

benefits that will further the administration of justice.”); /d. (“it has been found

based on data that ‘behavior in juries asked to reach a unanimous verdict is more

thorough and grave than in majority-rule juries, and that the former were more

likely than the latter jurors to agree on the issues underlying their verdict. Majority

jurors had a relatively negative view of their fellow jurors' openmindedness and

persuasiveness.””); /d. at 59 (“We also note that the requirement of unanimity in

‘The Florida Legislature in Chapter 2016-13 first recognized that a

defendant convicted of first degree murder had a substantive right to be sentenced

to life imprisonment unless the State convinced ten of twelve jurors to vote in

favor of a death recommendation. This substantive right was new. Previously, six

jurors voting for a life sentence constituted a life recommendation that the judge

could override and impose a death sentence if the life recommendation was found

not to be supported by a reasonable basis. When Chapter 2016-13 eliminated the

judicial override of a life recommendation and reduced the number of jurors

necessary for the jury’s verdict to constitute a life recommendation from six to

three, a substantive right to a life sentence was established when three jurors voted

for a life sentence. Chapter 2016-13 did include a fix for the constitutional defect

in § 921.141 identified in Hurst v. Florida. But, neither the elimination of the

judicial override nor the requirement that ten jurors must vote in favor of a death

sentence instead of seven jurors was a change mandated by Hurst v. Florida.

Instead, these changes reflected Florida’s evolving standards of decency.

23

capital jury findings will help to ensure the heightened level of protection

necessary for a defendant who stands to lose his life as a penalty.”’); Jd. at 60 (“If

death is to be imposed, unanimous jury sentencing recommendations, when made

in conjunction with the other critical findings unanimously found by the jury,

provide the highest degree of reliability in meeting these constitutional

requirements in the capital sentencing process.”); Jd. (unanimous recommendation

“expresses the values of the community as they currently relate to imposition of

death as a penalty.”); Jd. (“Requiring unanimous jury recommendations of death

before the ultimate penalty may be imposed will ensure that in the view of the

jury—a veritable microcosm of the community—the defendant committed the

worst of murders with the least amount of mitigation.”’).

Implicit in the recognition that requiring juror unanimity will enhance the

reliability of a decision to impose death sentences is an acknowledgment that a

death sentence imposed without such a requirement is less reliable. The 9-3

advisory death recommendations in Mr. Walton’s case mean his death sentences

resulted from a less reliable capital sentencing process than is now required.

There is empirical evidence to support the conclusion, that without

requiring a unanimous death recommendation, Florida’s old capital sentencing

scheme produced unreliable death sentences. Between 1972 and 2006, twenty-two

24

(22) people who had been sentenced to death in Florida were subsequently

exonerated and another individual was exonerated posthumously, while sixty-one

(61) people have been executed. Evaluating Fairness and Accuracy in the State

Death Penalty System: The Florida Death Penalty Assessment Report, America

Bar Association (2006) at iv, 8 (“[T]he proportion exonerated exceeds thirty

percent of the number executed.”). “Since the reinstatement of the death penalty in

1972, Florida has led the nation in death row exonerations.” /d. at 45.° The

number of men freed from Florida’s death row with a restored presumption of

innocence is indicative of a system infected with unreliability and in violation of

Furman v. Georgia.’ With a jury returning only an advisory recommendation by a

majority vote while also being precluded from considering any lingering doubt of

6One exoneree (Juan Melendez) was all the way through a first round and

second round of state postconviction proceedings before prevailing in a third

motion for postconviction relief and being released from death row after 17 years.

Surely what happened to Mr. Melendez was “cruel and unusual in the same way

that being struck by lightning is cruel and unusual.” Furman 408 US. at 309

(Stewart, J., concurring). And his exoneration was a second lightning strike. This

means that undoubtedly there are other innocent individuals on Florida’s death

row.

™r. Melendez served 17 years on death row, Rudolph Holton served 16

years before his release, and Frank Lee Smith served 15 years before dying of

cancer a few months before DNA evidence cleared of murder.

25

the defendant’s guilt, unreliability abounded.* We know numerous men who were

subsequently exonerated ended up on Florida’s death row. We do not know how

many remain there.

The unanimity requirement as explained in Hurst v. State is meant to

improve the reliability of death sentences imposed in Florida. It operates in a

fashion akin to a burden of proof. Going from an advisory death recommendation

by a majority vote of the jury to a requirement that a jury unanimously recommend

death before a death sentence is authorized is analogous to going from requiring

proof by a preponderance of the evidence to requiring proof beyond a reasonable

doubt.’ As to the requirement that in criminal cases guilt must be proven beyond a

*With this Court recognizing Hurst v. State and Perry v. State, that jurors

will be able to vote to exercise mercy, a vehicle for consideration of lingering

doubt will exist. Defendants who did not commit the murder that they were

convicted of are less able to mitigate a crime they did not commit, and thus have a

greater exposure to a death sentence when convicted of first degree murder.

*This Court recognized the a unanimity requirement was comparable to the

requirement that the State prove the elements of the offense beyond a reasonable

doubt in Hurst v. State, 202 So. 3d at 58 when it wrote:

Comparing the unanimous jury requirement to the requirement for

proof beyond a reasonable doubt, the Fifth Circuit Court of Appeals

stated, “the unanimous jury requirement ‘impresses on the trier of fact

the necessity of reaching a subjective state of certitude on the facts in

issue.’ ” United States v. Gipson, 553 F.2d 453, 457 (5th Cir.1977).

The purpose of both are the same, the importance of certitude in the jury’s findings

26

reasonable doubt, the US Supreme Court held:

The reasonable-doubt standard plays a vital role in the American

scheme of criminal procedure. It is a prime instrument for reducing

the risk of convictions resting on factual error. The standard provides

concrete substance for the presumption of innocence—that bedrock

‘axiomatic and elementary’ principle whose ‘enforcement lies at the

foundation of the administration of our criminal law.’ Coffin v. United

States, supra, 156 U.S., at 453, 15 S.Ct., at 403.

In re Winship, 397 U.S. 358, 363 (1970).”°

In Addington v. Texas, 441 U.S. 418, 42324 (1979), the US Supreme Court

explained:

The function of a standard of proof, as that concept is embodied in

the Due Process Clause and in the realm of factfinding, is to “instruct

the factfinder concerning the degree of confidence our society thinks

he should have in the correctness of factual conclusions for a

particular type of adjudication.” In re Winship, 397 U.S. 358, 370, 90

S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). The

standard serves to allocate the risk of error between the litigants and

to indicate the relative importance attached to the ultimate decision.

ok ok

and ultimate verdict.

In Jackson v. Virginia, 443 U.S. 307, 316 (1979), the US Supreme Court

discussed Winship and observed:

Winship presupposes as an essential of the due process guaranteed by

the Fourteenth Amendment that no person shall be made to suffer the

onus of a criminal conviction except upon sufficient proof—defined

as evidence necessary to convince a trier of fact beyond a reasonable

doubt of the existence of every element of the offense.

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In a criminal case, on the other hand, the interests of the defendant are

of such magnitude that historically and without any explicit

constitutional requirement they have been protected by standards of

proof designed to exclude as nearly as possible the likelihood of an

erroneous judgment. In the administration of criminal justice, our

society-imposes almost the entire risk of error upon itself. This is

accomplished by requiring under the Due Process Clause that the

state prove the guilt of an accused beyond a reasonable doubt. Jn re

Winship, supra.

(Footnote omitted). The burden of proof imposed in a particular type of case (civil,

civil commitment, juvenile, criminal) reflects the value that society places on the

liberty or life interest that is at stake. Jd. at 425.”

"In Speiser v. Randall, 357 U.S. 513, 525-26 (1958), the US Supreme Court

observed:

Where one party has at stake an interest of transcending value—as a

criminal defendant his liberty—this margin of error is reduced as to

him by the process of placing on the other party the burden of

producing a sufficiency of proof in the first instance, and of

persuading the factfinder at the conclusion of the trial of his guilt

beyond a reasonable doubt. Due process commands that no man shall

lose his liberty unless the Government has borne the burden of

producing the evidence and convincing the factfinder of his guilt.

Of course where a party’s life is at stake, the Eighth Amendment requires more:

The fundamental respect for humanity underlying the Eighth

Amendment's prohibition against cruel and unusual punishment gives

rise to a special “ ‘need for reliability in the determination that death

is the appropriate punishment’ ” in any capital case.

Johnson v. Mississippi, 486 U.S. 578, 584 (1988).

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