The full impact of a historic U.S. Supreme Court ruling on Florida’s death penalty system is finally emerging as the state’s Death Row population is smaller than it was more than a decade ago and will keep shrinking for a long time.
Florida has not executed an inmate in 18 months. No inmates haves been sent to Death Row in more than a year, a sign that prosecutors are not trying as many first-degree murder cases because of uncertainties in the sentencing system.
“There is no reason to sign a death warrant if you know it’s going to get delayed,” said State Attorney Bernie McCabe, the top prosecutor in Pinellas and Pasco counties. “I think judges are reluctant to if they don’t know what the rules are.”
Florida’s Death Row population now stands at 362, according to the Department of Corrections web site. That’s the lowest number since 2004; only a year ago, the population was 389.
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Many more cells on Death Row are certain to be emptied as the Florida Supreme Court continues to vacate death sentences because they violate a 2016 U.S. Supreme Court decision known as Hurst v. Florida.
The case struck down the state’s death penalty sentencing system because it limited jurors to an advisory role, a violation of the Sixth Amendment right to a trial by jury.
In four new cases, the state’s high court upheld first-degree murder convictions Thursday but ordered that all four defendants must be resentenced because of the Hurst decision, a step that could spare any or all of them a trip to the execution chamber.
One of the four, John Sexton, was convicted of the brutal 2010 Pasco County slaying of Ann Parlato, a 94-year-old woman who lived alone.
The jury that convicted Sexton recommend his execution by a vote of 10 to 2, a split decision that justices said Thursday is a violation of the Hurst decision.
Justices also lifted the death sentence of Tiffany Ann Cole, convicted of burying a couple alive in Jacksonville. She’s one of three women on Death Row.
It essentially means that every new penalty phase is going to have to be re-investigated and presented in full. There will not be an ability to simply rely on the prior penalty phase.
Scott Sundby, a law professor at the University of Miami
Legal experts say that in all, up to 150 death sentences could be reversed or be sent back to trial courts for resentencing hearings in other cases in which the jury’s recommendation of a death sentence was not unanimous.
Those penalty phase hearings will strain the limited resources of prosecutors and public defenders, who must scramble to find old trial transcripts and witnesses and must empanel new juries.
“I’ll use one word: ‘chaos,’ ” said retired Supreme Court Justice Gerald Kogan of Miami. “It’s just a mess.”
Scott Sundby, a law professor at the University of Miami, said the impact on the criminal justice system will be significant.
“It essentially means that every new penalty phase is going to have to be re-investigated and presented in full,” Sundby said. “There will not be an ability to simply rely on the prior penalty phase.”
For years before the precedent-setting Hurst ruling in January 2016, legal experts warned that Florida would face severe legal difficulties because of its “outlier” status as a state that did not require 12-member juries to be unanimous in recommending a death sentence.
The old law required a simple majority of jurors to recommend death.
362 inmates are on Death Row in Florida, down from 389 a year ago.
The Legislature, with the support of prosecutors and Attorney General Pam Bondi, the state’s chief legal officer, initially passed a law requiring at least 10 jurors to vote for death. The law was changed again in the 2017 session to require unanimity.
In applying the Hurst decision to Florida, the state Supreme Court requires that juries must be unanimous in declaring all aggravating factors that were proven beyond a reasonable doubt, unanimously find that aggravating factors are sufficient to impose death and unanimously find that aggravating factors outweigh factors in the defendant’s favor, known as mitigators.
Since Jan. 1, at least 15 condemned Florida inmates have left Death Row and a 16th has died. They include:
▪ Victor Caraballo, one of five men convicted of killing Ana Maria Angel, 18, a recent graduate of South Miami High School who was abducted from South Beach, gang-raped and murdered in 2002.
▪ Emilia Carr, at 32 the youngest woman on Death Row in America when she was sentenced to die two years ago for killing a woman in rural Marion County in what a court described as a “love triangle.”
▪ Zachary Taylor Wood, sentenced in Chipley in 2015 for the killing of a retired game warden — the first person in Florida’s modern history to be sentenced to death in rural Washington County in the Panhandle.
Every capital murder case has unique characteristics.
In Wood’s case, the Florida Supreme Court, in a 6-1 decision, ordered that his death sentence be reduced to life without parole because “there was a lack of competent, substantial evidence to support the trial court’s findings of the CCP and avoid arrest aggravating factors, and his death sentence is disproportionate when these aggravating factors are struck.” CCP is judicial jargon for “cold, calculated and premeditated,” one of many aggravating factors necessary to warrant a sentence of death.
Justice Ricky Polston, in a stinging dissent in the Wood case, wrote: “Beating the victim senseless with a garden hose, tying him up, and trying to set him on fire after dousing him with a petroleum product constitutes cold, calculated and premeditated. A unanimous jury recommendation for death is not surprising.”
The Miami Herald identified four more inmates, all from Miami-Dade, who are off Death Row but are still listed as Death Row inmates by the state. They are Harrel Braddy, Tavares Calloway,Victor Guzman and Corey Smith.
As the Supreme Court continues to review post-Hurst death sentence appeals, Gov. Rick Scott has not indicated when the state will resume executions.
“We’re still working with the attorney general on that,” Scott told the Herald/Times. “Look, that’s a solemn duty, but we’re still working with the attorney general’s office.”
The last person executed in Florida was Oscar Ray Bolin on Jan. 7, 2016, making him the 92nd person to be executed since Florida resumed capital punishment in 1979.
The last inmate to join Death Row , convicted double-murderer Craig Wall of Pinellas County, arrived more than a year ago, on June 6, 2016.
Jeff A. Marcus, Broward County’s chief assistant state attorney, said the Hurst case delayed trying death penalty cases.
The lower courts were unsure of what laws would be applicable and most potential death penalty cases were postponed, he said. However, several potential death penalty cases have gone to trial in Broward during the pendency of the Hurst litigation.
“Indeed, the legal community was waiting for the courts and the legislature to settle the death penalty issues,” Marcus said. “Now that they have been largely settled, the cases are being tried.”
Miami Herald staff writers David Ovalle and Amy Sherman, and Tampa Bay Times staff writers Alex Leary, Mark Puente and Dan Sullivan contributed to this report.
Contact Steve Bousquet at email@example.com and follow @stevebousquet