Kendrick Silver fatally shot a Coral Gables jogger and a Miami security guard in two senseless robberies. A jury agreed unanimously: Prosecutors proved his violent crimes far outweighed his troubled childhood and other reasons that might spare him execution.
But when it came to actually voting for the death penalty itself, one juror balked. Eleven others spent more than three hours trying to convince her that Silver deserved to die.
She would not budge. She wanted mercy.
So under Florida’s new death-penalty law, which requires that jurors be unanimous in recommending death as punishment for first-degree murder, the jury had no choice on Monday night but to agree to a life sentence for the 29-year-old Silver.
There is much to be drawn from Miami’s first death-penalty sentencing since the state’s new capital-punishment law was passed in March. For the state, the jury’s decision underscored what prosecutors in other states have long known: Securing a unanimous vote for the death penalty is no easy task.
“The state is asking for the most severe penalty on the books,” said recently retired Miami-Dade senior prosecutor Penny Brill. “It’s not supposed to be an easy thing. The state met its burden, as required by law, but one juror wanted mercy. I guess you could say the will of the community was not carried out.”
For defense lawyers and critics of capital punishment, however, the jury’s decision showed the revamped law worked, ensuring that execution is reserved for only the most egregious of killers — just like nearly every other state that still has the death penalty.
“The law is designed to give each individual juror the power to make their own moral assessment of what is the right penalty,” said Miami-Dade Assistant Public Defender Steven Yermish. “We have that engrained in Florida now that we have unanimity.”
And for most of the ethnically diverse, seven-woman, five-man jury, the trial’s end felt frustrating.
“We were dumbfounded. Eventually, we got tired of trying to convince her,” juror Jesus Hernandez said. “She wasn’t giving us a reason to understand her decision. She saw a redeeming quality in him that we did not.”
Jury foreman Albert Zamora said he had “never felt so disappointed in my life” after Monday night. “It was about showing closure and mercy for the victim — the defendant showed no mercy,” Zamora said.
The holdout, a young Hispanic woman originally from California, could not be reached for comment.
Most states across the country that feature the death penalty have long required that juries be unanimous in imposing capital punishment.
Famously, in 2015, Colorado movie theater shooter James Holmes got life in prison after one juror refused to impose death after convicting him of murdering 12 people. Another notorious killer, Arizona’s Jodi Arias, who shot and stabbed her lover in 2008, also got life in prison after two separate juries could not agree unanimously on the death penalty.
For decades in Florida, prosecutors only needed at least a majority seven votes for a death-penalty recommendation, with the judge ultimately meting out the punishment.
But the U.S. Supreme Court, in January 2016, ruled that Florida’s death-penalty sentencing scheme was unconstitutional because it gave too much power to judges, not juries. The Legislature changed the law to require a vote of at least 10 of 12 jurors to sentence someone to death.
The Florida Supreme Court, however, ruled that the new law was unconstitutional because jury decisions need to be unanimous. State lawmakers passed a new law requiring jurors to unanimously agree on a death sentence, although a judge can override the decision and impose life.
Under the new law, jurors can choose between life in prison or the death penalty, and for the latter they must first unanimously agree that prosecutors proved an “aggravating factor.” That could include a defendant’s violent criminal past, the “heinous, atrocious and cruel” nature of the murder or the young age of the victim.
Across the state, only a handful of defendants have proceeded to a death-penalty sentencing phase under the new law. Juries in at least five separate cases across Florida have voted unanimously for the death penalty, although none have yet been sentenced by the judge, according to the Florida Center for Capital Representation at Florida International University’s College of Law.
In Central Florida, two juries have recommended the death penalty. By a 12-0 vote, an Orlando jury voted to send Juan Rosario to Death Row for the murder of an 83-year-old woman; in Osceola, a jury voted in unison to execute Larry Perry for the killing of his infant son. Judges have yet to impose the sentences on either man.
Two other cases beside Silver’s have resulted in life sentences.
Stephen Harper, a former Miami-Dade public defender who now heads the FIU center, said the new law brings Florida “into the mainstream” of other states that have required unanimous jury decisions.
“I think there will be a reduction in death sentences, but how substantial a reduction remains to be seen,” Harper said. “But clearly it’s had some impact — in Silver’s case, it definitely had an impact.”
Said Miami-Dade State Attorney Katherine Fernandez Rundle of Silver’s case: “We did the best we could. We had the best of our lawyers on it. Even then, it underscores the high bar that has been set for us on these cases.”
Silver shot and killed jogger Jose Marchese-Berrios in the chest for his flip-top phone in 2007; the man staggered to his Coral Gables home and died in the arms of his 15-year-old son. Silver was convicted in 2015, but the jury spared him the death penalty under Florida’s previous law.
Two years later, with the new law in place, a second jury deliberated less than one hour in April of convicting Silver of the December 2006 murder of 62-year-old Solmeus Accimeus. Dressed in black and wearing a ski mask, Silver shot and killed Accimeus as he sat in his car at closing time outside Esther’s Restaurant in North Miami-Dade.
The point-blank gunshot penetrated Accimeus’ aorta, spraying blood on Silver. Nearby, police detectives found the ski mask, which had Accimeus’ blood on the outside, and Silver’s DNA on the inside, prosecutors said.
The same Miami-Dade jury reconvened this month to consider Silver’s life story.
They were prohibited from hearing of another arrest: Silver and a friend — wielding pistols and an assault-style rifle — stormed a Delray Beach pizzeria at closing time, shooting and wounding three people. Silver was convicted and sentenced to 75 years in prison, but the conviction was later overturned.
The jury did hear from family of Accimeus and about the murder of the jogger, and testimony from Marchese-Berrios’ namesake son. “That’s something that no child should ever go through,” said Hernandez, the juror.
Prosecutor Gail Levine told jurors Silver “does not deserve your mercy … a life sentence is not enough.”
Silver’s defense team presented family, friends and experts who recounted his poverty-stricken tumultuous childhood with a mother who once implored him to run into traffic and get hit by a truck. Jail witnesses also testified that Silver turned his life around in jail, working as a trustee serving food and cleaning the facility, even speaking to at-risk teens visiting the jails.
“They want to paint him as a monster. His crimes were monstrous. He is not a monster,” Miami-Dade Assistant Public Defender Manny Alvarez told jurors. “He’s a damaged kid.”
Jurors also heard something new. Defense lawyers asked for a special instruction to go along with the standard language that juries are not required to impose death. Over prosecutors’ objections, Circuit Judge Marisa Tinkler-Mendez read it to the jury: “You may always consider mercy in making this determination of the appropriate sentence.”
Just before 8 p.m. Monday, the jury reached its decision. At first, as the clerk read the decision: the jury — including the holdout juror — decided that the aggravating factors “outweighed the mitigating circumstances” But life was still the sentence.
Silver’s supporters, including members of the defense team, began to tear up. Lawyers embraced Silver, who looked shocked. Yermish, one of the defense lawyers, drooped his head. He said: “It was relief like you couldn’t imagine.”