Petition for Writ of Certiorari — Naftali Dominguez Zenon, Petitioner v. Florida

Supreme Court briefMar 26, 2024

Ask Donna

What actually matters in this document.

Text

NO:

IN THE SUPREME COURT OF THE UNITED STATES

Naftali Dominguez Zenon, Petitioner

State of Florida, Respondent.

On Petition For a Writ of Certiorari to

The Fourth District Court of Appeal of Florida

PETITIONER FOR A WRIT OF CERTIORARI

CAREY HAUGHWOUT

Public Defender

Benjamin Hunter Eisenberg

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421 Third Street, Florida 33401

(561) 355-7600

beisenberg@pd15.state.fl.us

appeals@pdl5.org

QUESTIONS PRESENTED

Whether the Sixth and Fourteenth Amendments guarantee

the right to a trial by a twelve-person juiy when the defendant

is charged with a life felony?

II.

Whether a mandatory life without parole sentence for a non¬

homicide offense violates the Eighth Amendment of the

United States Constitution?

RELATED PROCEEDINGS

The proceedings listed below are directly related to the above¬

captioned case in this Court.

Dominguez Zenon v. State, No. 4D2022-1092, 2024 WL

103662, *1 (Fla. 4th DCA Jan. 10, 2024).

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

I. The reasoning of Williams v. Florida has been rejected and the

case should be overruled

ILThis Court should resolve whether the death is different

jurisprudence applies to LWOP sentences for crimes not death

eligible

CONCLUSION

INDEX TO APPENDICES

District Court’s Decision

District Court’s denial for a written opinion

Excerpts from Dominguez Zenon’s Initial Brief

Judgement and Sentence

A31

iii

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972)

Baldwin v. New York, 399 U.S. 117 (1970)

Ballew v. Georgia, 435 U.S. 223 (1978)

11, 12

Burch v. Louisiana, 441 U.S. 130 (1979)

Campbell v. Ohio, 138 S. Ct. 1059 (2018)

Duncan v. Louisiana, 391 U.S. 145 (1968)

Florida Fertilizer & Mfg. Co. v. Boswell,

34 So. 241 (Fla. 1903)

Furman v. Georgia, 408 U.S. 238 (1972)

Gibson v. State, 16 Fla. 291 (1877)

Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022)

Hobbie v. Unemployment Appeals Comm'n of Florida,

480 U.S. 136 (1987)

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)

Jones v. Mississippi, 593 U.S. 98 (2021)

Kennedy v. Louisiana, 554 U.S. 407 (2008)

20, 23

Khorrami v. Arizona, 143 S. Ct. 22 (2022)

14, 15, 17

Maxwell v. Dow, 176 U.S. 581 (1900)

Patton v. United States, 281 U.S. 276 (1930)

Powers v. Ohio, 499 U.S. 400 (1991)

;

Ramos v. Louisiana, 140 S. Ct. 1390 (2020)

passim

Ratliff v. State, 914 So. 2d 938 (Fla. 2005)

State v. Khorrami, 1 CA-CR 20-0088, 2021 WL 3197499

(Ariz. Ct. App. July 29, 2021)

13, 14

State v. West, 30 Fla. L. Weekly Supp. 607a

(Fla. Uth Cir. Dec. 2, 2022)

Thompson v. Utah, 170 U.S. 343, 349-350 (1898)

Statutes

§ 913.10, Fla. Stat

Ark. Stat. § 5-14-103(a)(l)

Ark. Stat. § 5-4-104(c)(2)(A)

Iowa Stat. § 709.2

Iowa Stat. § 902.1 1

La. Stat. § 42 D.(l)

Minn. Stat. § 609.3455 Sub. 2

Nev. Stat. § 200.336(3)(a)

Utah Stat. § 76-5-402.1(3) (b)

Other Authorities

4 W. Blackstone,

Commentaries on the Laws of England 343 (1769)

Cary Aspinwall, et al., Two Strikes and You're in Prison Forever,

The Marshall Project, Nov. 11, 2021 available at

https: / /www.themarshallproject.org/2021/11/11/Two-StrikesAnd-You-Re-In-Prison-Forever

Death Row USA, Death Penalty Information Center (as of Jan. 1,

2023) available at https://deathpenaltyinfo.org/death24

row/ overview/ death-row-usa

Diamond et al., Achieving Diversity on the Jury: Jury Size and the

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425, 427

(Sept. 2009)

Higginbotham et al., Better by the Dozen: Bringing Back the Twelve-

Person Civil Jury, 104 Judicature 47, 52 (Summer 2020) .... 12, 13

Jerrell H. Shofner, Reconstruction and Renewal, 1865-1877, in

The History of Florida 273 (Michael Gannon, ed., first paperback

edition 2018)

16, 17

John Gastil & Phillip J. Weiser, Jury Service as an Invitation to

Citizen: Assessing the Civic Values of Institutionalized Deliberation,

34 PolYStud. J. 605, 606 (2006)

Press Release, Florida Commission on Offender Review, available at

https:/ /www.fcor.state.fl.us/docs/media/PressReleases/2021/20

2 l%20Clemency%20Rule%20Change%20Press%20Release.pdf 22

Richard L. Hume, Membership of the Florida Constitutional

Convention of 1 868: A Case Study of Republican Factionalism in

the Reconstruction South, 51 Fla. Hist. Q. 1, 5-6 (1972)

16, 17

Smith & Saks, The Case for Overturning Williams v. Florida and the

Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008)

United States Courts, Juror Experiences, available at:

https: / /www.uscourts.gov/services-forms/juiy-service/leamabout-juiy-service /juror-experiences

Rules

Fla. R. Crim. P. 3.270

Constitutional Provisions

Amend. VI, U.S. Const

Amend. VIII, U.S. Const

Amend. XIV, U.S. Const

Art. I, § 22, Fla. Const

IN THE SUPREME COURT OF THE UNITED STATES

No.

Naftali Dominguez Zenon, Petitioner,

State of Florida, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

PETITION FOR A WRIT OF CERTIORARI

Naftali Dominguez Zenon respectfully petitions for a writ of

certiorari to review the judgement in this case of the Fourth District

Court of Appeal of Florida.

OPINION BELOW

The opinion of Florida’s Fourth District Court of Appeal is

reported as Dominguez Zenon v. State, 373 So. 3d 349 (Fla. 4th DCA

2023). A motion for written opinion was denied and is reprinted in

appendix. Al. The District Court’s order denying a motion for written

opinion is also reprinted in the appendix. A4.

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed Dominguez

Zenon’s conviction and sentence on January 10, 2024. Al. The

District Court denied Dominguez Zenon’s timely motion for a written

opinion on the constitutional issues on February 14, 2024. A4. The

Fourth District’s decision was final, as the Florida Supreme Court

has no jurisdiction to review a decision that was affirmed without

discussion. See Jenkins v. State, 385 So. 2d 1356 (Fla. 1980); see

also Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S.

136, 139 n.4 (1987) (acknowledging that “[u]nder Florida law, a per

curiam affirmance issued without opinion cannot be appealed to the

State Supreme Court” and therefore petitioner “sought review directly

in this Court.”). This Court has jurisdiction under 28 U.S.C. §

1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment of the United States Constitution

provides: "In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defense."

The Eighth Amendment

of the United States Constitution

provides: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”

Section 1 of the Fourteenth Amendment of the United States

Constitution provides: “[N]or shall any State deprive any person of

life, liberty, or property, without due process of law . . ”

STATEMENT OF THE CASE

Petitioner, Naftali Dominguez Zenon, was convicted by a sixperson jury of capital sexual battery1 and he was sentenced to

mandatory life imprisonment. He appealed to the Fourth District

Court of Appeal of Florida. Relying on Ramos v. Louisiana, 140 S. Ct.

1390 (2020), he argued that he was entitled under the Sixth and

Fourteenth Amendments to a twelve-person jury. A6-31. The District

Court previously rejected this argument in Guzman v. State, 350 So.

1 When Petitioner was tried and convicted capital sexual battery was not

eligible for the death penalty.

3d 72 (Fla. 4th DCA 2022), rev. denied, No. SC22-1597 (Fla. June 6,

2023). In his concurring opinion in Guzman, Judge Gross said that

“Ramos . . . suggests that Williams was wrongly decided,” that

“Guzman has a credible argument that the original public meaning

of the Sixth Amendment right to a ‘trial by an impartial jury’ included

the right to a 12-person juiy,” and that “Williams hovers in the legal

ether, waiting for further examination by the [United States] Supreme

Court.” Id. at 78 (emphasis and citations omitted). Guzman’s petition

is pending in this Court under case no. 23-5173, and the conference

has been rescheduled.2

Additionally, relying on the death is different jurisprudence and

the fact that Florida is an outlier requiring mandatory life sentence

for a non-homicide crime, he argued his sentence violated the Eighth

Amendment. A33-43.

2 There are 18 other cases raising the same question presented.

Cunningham v. Florida, No. 23-5171; Arellano-Ramirez v. Florida, No. 23-5567;

Sposato v. Florida, 23-5575; Morton v. Florida, No. 23-5579; Jackson v. Florida,

No. 23-5570; Crane v. Florida, No. 23-5455; Aiken v. Florida, No. 23-5794;

Manning v. Florida, No. 23-6049; Enrriquez v. Florida, No. 23-5965; Bartee v.

Florida, No. 23-6143; Tillman v. State, No. 23-6304; Owensby v. Florida, No.

23-6723; Quinn v. Florida, 23-6558; Anderson v. Florida, No. 23-6527; Sanon v.

Florida, No. 23-6289; Mejia v. Florida, No. 23-6597; Luviano v. Florida, No. 236622; and Tansil v. Florida, No. 23-6901. This case should at least be held

pending resolution of Guzman and those other petitions.

The District Court rejected both constitutional arguments

without written reasons, and it denied his motion for a written

opinion on those two issues. A4.

REASONS FOR GRANTING THE PETITION

The reasoning of Williams v. Florida has been rejected

and the case should be overruled

This Court's decision in Williams v. Florida, 399 U.S. 78 (1970),

is impossible to square with the ruling in Ramos v. Louisiana, 140 S.

Ct. 1390 (2020), that the Sixth Amendment's “trial by an impartial

jury” requirement encompasses what the term “meant at the Sixth

Amendment's adoption,” id. at 1395. What the term meant was a jury

of twelve.

As this Court stated in Ramos, Blackstone recognized that

under the common law, “no person could be found guilty of a serious

crime ^unless the truth of every accusation . . . should ... be

confirmed by the unanimous suffrage of twelve of his equals and

neighbors!.]”’ Id. at 1395 (quoting 4 W. Blackstone, Commentaries on

the Laws of England 343 (1769)). “A verdict, taken from eleven, was

no verdict at all.” Id. (internal quotations and citations removed).

This Court said in Thompson v. Utah, 170 U.S. 343, 349-350

(1898), that since the time of Magna Carta, the word “jury” had been

understood to mean a body of twelve people. Given that that

understanding had been accepted since 1215, the Court reasoned,

“[i]t must” have been “that the word, ‘jury”’ in the Sixth Amendment

was “placed in the constitution of the United States with reference to

[that] meaning affixed to [it].” Id. at 350.

This Court continued to cite the basic principle that the Sixth

Amendment requires a twelve-person jury in criminal cases for

seventy more years. In 1900, the Court explained that “there [could]

be no doubt” “[t]hat a jury composed, as at common law, of twelve

jurors was intended by the Sixth Amendment to the Federal

Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900). Thirty years

later, this Court reiterated that it was “not open to question” that “the

phrase ‘trial by jury”’ in the Constitution incorporated juries’

“essential elements” as “they were recognized in this country and

England,” including the requirement that they “consist of twelve men,

neither more nor less.” Patton v. United States, 281 U.S. 276, 288

(1930). And as recently as 1968, the Court remarked that “by the

time our Constitution was written, jury trial in criminal cases had

been in existence for several centuries and carried impressive

credentials traced by many to Magna Carta,” such as the necessary

inclusion of twelve members. Duncan v. Louisiana, 391 U.S. 145,

151-152 (1968).

In 1970, however, the Williams Court overruled this line of

precedent in a decision that Justice Harlan described as “stripping

off the livery of history from the jury trial” and ignoring both “the

intent of the Framers” and the Court's long held understanding that

constitutional “provisions sire framed in the language of the English

common law [] and . . . read in the light of its history.” Baldwin v.

New York, 399 U.S. 117, 122-123 (1970) (citation omitted) (Harlan,

J., concurring in the result in Williams). Indeed, Williams recognized

that the Framers “may well” have had “the usual expectation” in

drafting the Sixth Amendment “that the jury would consist of 12”

members. Williams, 399 U.S. at 98-99. But Williams concluded that

such "purely historical considerations" were not dispositive. Id. at 99.

Rather, the Court focused on the “function” that the jury plays in the

Constitution, concluding that the “essential feature” of a jury is it

leaves justice to the “commonsense judgment of a group of laymen”

and thus allows “guilt or innocence” to be determined via “community

participation and [with] shared responsibility.” Id. at 100-01.

According to the Williams Court, both “currently available evidence

[and] theory” suggested that function could just as easily be

performed with six jurors as with twelve. Id. at 101-102 & n.48; cf.

Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging that

Williams and its progeny “departed from the strictly historical

requirements of jury trial”).

Williams's ruling that the Sixth Amendment (as incorporated to

the States by the Fourteenth) permits a six-person jury cannot stand

in light of Ramos. There, this Court held that the Sixth Amendment

requires a unanimous verdict to convict a defendant of a serious

offense. In reaching that conclusion, the Ramos Court overturned

Apodaca v. Oregon, 406 U.S. 404 (1972), a decision that it faulted for

“subjecting] the ancient guarantee of a unanimous jury verdict to its

own functionalist assessment.” 140 S. Ct. at 1401-1402.

That reasoning undermines Williams as well. Ramos rejected

the same kind of “cost-benefit analysis” this Court undertook in

Williams, observing that it is not the Court's role to “distinguish

between the historic features of common law jury trials that (we

think) serve ‘important enough functions to migrate silently into the

Sixth Amendment and those that don't.’” 140 S. Ct. at 1400-01.

Rather, the Ramos Court explained, the question is whether “at the

time of the Sixth Amendment's adoption, the right to trial by jury

included” the particular feature at issue. Id. at 1402. As the history

summarized above establishes, there can be no serious doubt that

the common understanding of the jury trial during the revolutionary

—

War era was that twelve jurors were required “a verdict, taken from

eleven, was no verdict at all.” See 140 S. Ct. at 1395 (quotation

omitted) .

Even setting aside Williams's disfavored functionalist logic, its

ruling suffered from another flaw: it was based on research that was

out of date shortly after the opinion issued. Specifically, the Williams

Court “f{ou]nd little reason to think” that the goals of the jury

guarantee-including, among others, “to provide a fair possibility for

—

obtaining a representative [] cross-section of the community” “are in

any meaningful sense less likely to be achieved when the juiy

numbers six, than when it numbers 12.” 399 U.S. at 100. The Court

theorized that “in practice the difference between the 12-man and the

six-man jury in terms of the cross-section of the community

represented seems likely to be negligible.” Id. at 102.

In the time since Williams, that determination has proven

incorrect. This Court acknowledged as much eight years later in

Ballew v. Georgia, 435 U.S. 223 (1978), when it concluded that the

Sixth Amendment barred the use of a five-person jury. Although

Ballew did not overturn Williams, the Ballew Court observed that

empirical studies conducted in the handful of intervening years

highlighted several problems with Williams' assumptions. For

example, Ballew noted that more recent research showed that (1)

“smaller juries are less likely to foster effective group deliberation,”

id. at 233; (2) smaller juries may be less accurate and cause

“increasing inconsistency” in verdict results, id. at 234; (3) the chance

for hung juries decreases with smaller juries, disproportionally

harming the defendant, id. at 236; and (4) decreasing jury sizes

“foretell[] problems . . . for the representation of minority groups in

the community,” undermining a jury's likelihood of being “truly

representative of the community,” id. at 236-37. Moreover, the Ballew

Court “admitted]” that it “d[id] not pretend to discern a clear line

between six members and five,” effectively acknowledging that the

studies it relied on also cast doubt on the effectiveness of the sixmember jury. 435 U.S. at 239; see also id. at 245-46 (Powell, J.)

(agreeing that five-member juries are unconstitutional, while

acknowledging that “the line between five- and six-member juries is

difficult to justify”).

Post-Ballew research has further undermined Williams. Current

empirical evidence indicates that “reducing juiy size inevitably has a

drastic effect on the representation of minority group members on

the jury.” Diamond et al., Achieving Diversity on the Jury: Jury Size

and the Peremptory Challenge, 6 J. of Empirical Legal Stud. 425, 427

(Sept. 2009); see also Higginbotham et al., Better by the Dozen:

Bringing Back the Twelve-Person Civil Jury, 104 Judicature 47, 52

(Summer 2020) (“Larger juries are also more inclusive and more

representative of the community. ... In reality, cutting the size of the

jury dramatically increases the chance of excluding minorities.”).

Because “the 12-member juiy produces significantly greater

heterogeneity than does the six-member juiy,” Diamond et al.,

Achieving Diversity on the Jury, supra, at 449, it increases “the

opportunity for meaningful and appropriate representation” and

helps ensure that juries “represent adequately a cross-section of the

community.” Ballew, 435U.S. at 237.

Other important considerations also weigh in favor of the

twelve-member jury. Studies indicate that twelve-member juries

deliberate longer, recall evidence better, and rely less on irrelevant

factors during deliberation. See Smith & Saks, The Case for

Overturning Williams v. Florida and the Six-Person Jury, 60 Fla. L.

Rev. 441, 465 (2008). Minority views are also more likely to be

thoroughly expressed in a larger jury, as “having a large minority

helps

make the minority subgroup

more influential,”

and,

unsurprisingly, “the chance of minority members having allies is

greater on a twelve-person jury.” Id. at 466. Finally, larger juries

deliver more predictable results. In the civil context, for example,

“[s]ix-person juries are four times more likely to return extremely

high or low damage awards compared to the average.” Higginbotham

et al., Better by the Dozen, supra, at 52.

In Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), the

District Court cited State v. Khorrami, 1 CA-CR 20-0088, 2021 WL

3197499 (Ariz. Ct. App. July 29, 2021). At the time of the District

Court's decision, Khorrami' s petition for writ of certiorari was

pending in this Court. Khorrami's petition was denied, over dissents

by Justices Kavanaugh and Gorsuch. Khorrami v. Arizona, 143 S. Ct.

22 (2022).

Although there is no legal significance to the denial of a petition

for writ of certiorari,3 there are important differences between

Florida's and Arizona's systems. In Arizona, criminal defendants areguaranteed “a twelve-person jury in cases when the sentence

authorized by law is death or imprisonment for thirty years or more.

. . . Otherwise, a criminal defendant may be tried with an eight¬

person jury.” State v. Khorrami, 2021 WL 3197499, at *8 (citations

omitted). Florida juries are smaller (six versus eight), and those

smaller juries are mandated in every case except capital cases. Art.

I, § 22, Fla. Const.; § 913.10, Fla. Stat.; Fla. R. Crim. P. 3.270.

More importantly, the history of Florida's rule can be traced to

the Jim Crow era. Justice Gorsuch observed that “(d]uring the Jim

Crow era, some States restricted the size of juries and abandoned the

demand for a unanimous verdict as part of a deliberate and

3 See Ramos, 140 S. Ct. 1390 at n.56 ("The significance of

a denial of a

petition for certiorari ought no longer require discussion. This Court has said

again and again and again that such a denial has no legal significance

whatever bearing on the merits of the claim.") (cleaned up).

systematic effort to suppress minority voices in public affairs.”

Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting) (citations

omitted). He noted, however, that Arizona's law was likely motivated

by costs not race. Id. But Florida's juiy of six did arise in that Jim

Crow era context of a "deliberate and systematic effort to suppress

minority voices in public affairs." Id.

The historical background is as follows:

In 1875, the Jury Clause of the 1868 constitution was amended

to provide that the number of jurors "for the trial of causes in any

court may be fixed by law." See Florida Fertilizer & Mfg. Co. v. Boswell,

34 So. 241, 241 (Fla. 1903). The common law rule of a jury of twelve

was still kept in Florida while federal troops remained in the state.

There was no provision for a jury of less than twelve until the

Legislature enacted a provision specifying a jury of six in Chapter

3010, section 6, Laws of Florida (1877). See Gibson v. State, 16 Fla.

291, 297-98 (1877); Florida Fertilizer, 34 So. at 241.

The Florida Legislature enacted chapter 3010 with the jury-of-

six provision on February 17, 1877. Gibson, 16 Fla. 294. This was

less than a month after the last federal troops were withdrawn from

Florida in January 1877. See JerrellH. Shofner, Reconstruction and

Renewal, 1865-1877, in The History of Florida 273 (Michael

Gannon, ed., first paperback edition 2018) (“there were [no] federal

troops” in Florida after 23 January 1877").

The jury-of-six thus first saw light at the birth of the Jim Crow

era as former Confederates regained power in southern states and

state prosecutors made a concerted effort to prevent blacks from

serving on jurors.

On its face the 1868 constitution extended the franchise to

black men. But the historical context shows it was part of the overall

resistance to Reconstruction efforts to protect the rights of black

citizens. The constitution was the product of a remarkable series of

events including a coup in which leaders of the white southern (or

native) faction took possession of the assembly hall in the middle of

the night, excluding Radical Republican delegates from the

proceedings. See Richard L. Hume, Membership of the Florida

Constitutional Convention of 1868: >1 Case Study of Republican

Factionalism in the Reconstruction South, 51 Fla. Hist. Q. 1, 5-6

(1972); Shofner at 266. A reconciliation was effected as the “outside”

whites “united with the majority of the body's native whites to frame

a constitution designed to continue white dominance.” Hume at 15.

The purpose of the resulting constitution was spelled out by

Harrison Reed, a leader of the prevailing faction and the first governor

elected under the 1868 constitution, who wrote to Senator Yulee that

the new constitution was constructed to bar blacks from legislative

office: “Under our Constitution the Judiciaiy & State officers will be

appointed & the apportionment will prevent a negro legislature.”

Hume, 15-16; see also Shofner, 266.

Smaller juries and non-unanimous verdicts were part of a Jim

Crow era effort “to suppress minority voices in public affairs.”

Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting); see also Ramos,

140 S. Ct. at 1417 (Kavanaugh, J., concurring) (non-unanimity was

enacted “as one pillar of a comprehensive and brutal program of

racist Jim Crow measures against African Americans, especially in

voting and jury service.”). The history of Florida's juiy of six arises

from the same historical context.

And this history casts into relief another negative consequence

of having six-person juries. Six-person juries necessarily deny a great

number of cituzens the “duty, honor, and privilege of jury service.”

Powers v. Ohio, 499 U.S. 400, 415 (1991). Many consider jury service

—

an “amazing and powerful opportunity and experience one that will

strengthen your sense of humanity and your own responsibility.”

United States Courts, Juror Experiences.4 Jury service, like civic

deliberation in general, “not only resolves conflicts in a way that

yields improved policy outcomes, it also transforms the participants

—

in the deliberation in important ways altering how they think of

themselves and their fellow citizens.” John Gastil & Phillip J. Weiser,

Jury Service as an Invitation to Citizen: Assessing the Civic Values of

Institutionalized Deliberation, 34 PolY Stud. J. 605, 606 (2006). Juiy

service is a “means of affording every citizen the chance to step into

the state’s shoes, to see the inner workings of the justice system, and

to feel first-hand the power of self-government. In other words, the

jury is a sacred, institutionalized opportunity for citizens to

experience the transformative power of public deliberation.” Id. at 2223.5

"[I]n Ramos v. Louisiana, the Court explained why Apodaca was

wrong; and, by unavoidable implication, why Williams must be

4 Available at: https:

/ / www.uscourts.gov/services-forms/iury-

service / learn-about-iury-service / juror-experiences

5 Pincite is based on the downloaded .pdf document of Gastil’s journal

article.

wrong." State v. West, 30 Fla. L. Weekly Supp. 607a (Fla. 11th Cir.

Dec. 2, 2022). This Court should grant the petition to correct this

mistake.

II.

This Court should resolve whether the death is different

jurisprudence applies to LWOP sentences for crimes not

death eligible.

Death is different because of its finality. “Death is truly an

awesome punishment” and “involves, by its very nature, a denial of

the executed person’s humanity.” Furman v. Georgia, 408 U.S. 238,

290 (1972) (Brennan, J., concurring). A mandatory life without parole

(LWOP) sentence rejects the potential for rehabilitation and is an

“absolute renunciation of all that is embodied in our concept of

humanity.” Id. at 306 (Brennan, J., concurring). There is no viable

path to resurrect the individual’s life, liberty, or basic rights after that

sentence has been imposed. See Miller v. Alabama, 567 U.S. 460,

473-75 (2012).

Individuals convicted on non-capital crimes have no access to

post-conviction attorneys and limited access to courts once the

sentence and judgment has become final. This makes it even more

critical that the LWOP be the correct sentence for that individual.

Mandatory sentences take away the court’s discretion yet it is

“abundantly clear” that the individual sentenced to LWOP will die in

prison. Ratliff v. State, 914 So. 2d 938, 940 (Fla. 2005) (rejecting the

argument that a life sentence is unconstitutional because it is an

“indefinite imprisonment”) .

The death is different jurisprudence rests on the fundamental

principle to ensure that the ultimate sentence only be imposed in

select circumstances. Rape of a child is not one of those

circumstances. See Kennedy v. Louisiana, 554 U.S. 407, 413 (2008).

“Because of the parallels between a sentence of death and a

sentence of life imprisonment without parole, the Court has drawn

on certain Eighth Amendment requirements developed in the capital

sentencing context to inform the life-without-parole sentencing

context.” Campbell v. Ohio, 138 S. Ct. 1059 (2018) (Sotomayor, J.,

concurring). This Court is specifically suited to instruct the states on

why LWOP should not be imposed on crimes that are not death

eligible.

A. Most jurisdictions do not required mandatory life sentence

for a child sexual battery conviction—Florida is an outlier.

Outside of Florida, there is only one state that mandates LWOP

—

in similar circumstances Louisiana. See La. Stat. § 42 D.(l) (LWOP

when first degree rape and victim is under thirteen). That makes

Florida one of two states that mandate LWOP for a child sexual

offense. Five additional states require LWOP when additional facts

are present. Ark. Stat. §§ 5-14-103(a)(1) (child rape involving “forcible

compulsion”), 5-4-104 (c)(2) (A) (mandatory LWOP); Iowa Stat. §§

709.2 (Class A felony when sexual abuse of child causes “serious

injury”), 902.1 1. (mandatory LWOP for Class A felonies); Utah Stat.

§ 76-5-402. l(3)(b) (mandatory LWOP for rape of a child if defendant

caused serious bodily injury to victim); Nev. Stat. § 200.336(3)(a)

(mandatory LWOP for child sexual assault causing “substantial

bodily harm”); Minn. Stat. § 609.3455 Sub. 2. (mandatory LWOP if

“egregious” first-time offense).

Forty-four states do not mandate an individual die in prison

after being convicted of a child sex crime. It is critical that this Court

rectify the inconsistencies in how the states are imposing mandatory

LWOP sentences for non-death eligible convictions.

B. This case is an ideal vehicle to answer the question

presented.

This case is an ideal vehicle to resolve the question presented for

three reasons.

First, there are no procedural obstacles that would complicate

this Court’s review. The question presented was raised and ruled on

at the trial phase and then briefed and affirmed on appeal.

Second, this case presents a clean legal question: Does a

mandatory LWOP sentence for a non-death eligible offense violate the

Eighth Amendment? The death is different jurisprudence started

with this Court therefore it is well suited to answer this question.

Three, in Florida clemency is not an option for those serving

LWOP sentences. Florida’s Governor DeSantis “unilaterally exercised

his clemency powers to deny the pending clemency applications of all

murderers and felony sex offenders.” Press Release, Florida

Commission on Offender Review.6 Therefore, the resolution in this

case could be limited to other states where clemency is not an option

for those serving mandatory LWOP sentences.

C. The question presented is one of exceptional importance.

Whether a mandatory death by incarceration sentence for a

non-homicide crime violates the Eighth Amendment’s cruel and

6 Available at

https://www.fcor.state.fl.us/docs/media/PressReleases/2021/2021%20Cleme

ncy%20Rule%20Ch.ange%20Press%20Release.pdf (last visited on March 20,

2024).

unusual punishment clause is of exceptional importance because of

its constitutional significance.

This Court has held strong on the prohibition against non¬

homicide crimes being death eligible. See Jones v. Mississippi, 593

U.S. 98, 106 (2021); Kennedy v. Louisiana, 554 U.S. 407, 421 (2008).

LWOP has become a replacement for a death sentence because the

—

result is the same death. Yet people sentenced to die in prison do

not have the same safeguards as those sentenced to die by execution.

When a sentence is so final that the event that terminates the

sentence is the person’s death, the Eighth Amendment protections

must be applied.

This question allows the Court to ensure that the Eighth

Amendment protections are relevant to today’s society where far more

people are serving LWOP sentences in Florida than death sentences.

Specially, there are over “13,600 individuals serving LWOP

[sentences] in Florida, far more than any other state and almost a

quarter of the total nationwide.” Cary Aspinwall, et al., Two Strikes

and You're in Prison Forever, The Marshall Project, Nov. 11, 2021.7

Available at https://www.themarshallproiect.org/2021/11/11/two-strikes-and-vou-re-in-

prison-forever (last visited March 21, 2024).

In comparison, of the 2,331 individuals on death row across the

nation, there are only 313 individuals currently on death row in

Florida (second highest population in the nation). Death Row USA,

Death Penalty Information Center (as of Jan. 1, 2023).8 The sheer

number of these sentences illuminates the need for Eighth

Amendment protections. This question allows the Court to ensure

that people cannot be sentenced to die in prison without one of the

—

most basic Eighth Amendment protections -judicial discretion at

sentencing. That is a question of exceptional importance.

CONCLUSION

The petition for a writ of certiorari should be granted on both

issues. If this Court denies Issue II, then this petition should be

pending the resolution of Guzman and all other identical petitions.

Respectfully submitted,

CAREY HAUGHWOUT

Available at https://deathpenaltyinfo.org/death-row/dverview/death-row-usa (last

reviewed March 21, 2024).

Assistant Public Defender

Counsel of Record

Office of the Public Defender

15th Judicial Circuit of Florida

421 Third Street

West Palm Beach, Florida 33401

(561) 355-7600

beisendberg@pd.15.state.fl.us

appeals@pd15.org

March 26, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.