Just hours after declaring prosecutors could not seek death sentences under existing state law, the Florida Supreme Court on Wednesday rescinded the order, an uncommon move that casts fresh uncertainty on the state’s death penalty.
Due to “human error” the court accidentally published the order, which was not ready to go out, spokesman Craig Waters said in a statement.
“The order references cases that still are pending in the Court in which separate opinions have not yet been issued,” Waters said. “The error occurred because today’s order should not have been released until the opinions in those separate cases actually have been issued.”
The court is reviewing its procedures to prevent similar problems in the future, Waters said. It is not clear when the order was supposed to be published or when it could be republished.
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But Waters did not say the order, originally handed down Wednesday morning, was wrong.
In the 5-2 ruling, the court rejected Attorney General Pam Bondi’s request to let prosecutors seek the death penalty as long as juries voted unanimously. The court threw out the state’s revamped death sentencing law in October because it required only a 10-2 super majority of the jury to put someone to death.
Wednesday morning, the majority of the justices said that the whole statute was unconstitutional and “cannot be applied to pending prosecutions” even if a jury were to vote unanimously for death.
But two justices, Ricky Polston and Charles Canady, dissented, writing that they did not believe the state’s death penalty statute was unconstitutional and that the original ruling caused “confusion and paralysis across the state regarding the death penalty and capital trials.”
Bondi and several state attorneys have been arguing for months that prosecutors should still be able to seek the death penalty and hand down a death sentence if all 12 jurors agree. If the jury cannot reach unanimous agreement, a convicted killer would be sentenced to life in prison.
“If the penalty itself is not unconstitutional, and the only way you can get there is through unanimity, I fail to understand why you cannot so instruct a jury,” said Bernie McCabe, state attorney for Pinellas and Pasco counties.
But defense attorneys saw things differently and largely agreed with the court’s early Wednesday ruling before it was rescinded.
“I don’t know how you instruct a jury on that,” said Rex Dimmig, public defender for Polk, Highlands and Hardee counties. “Either it’s a constitutional statute or it’s an unconstitutional statute. So until the Legislature fixes [the law], the state cannot proceed on death penalty cases.”
It’s likely the Legislature will do just that, passing a new law to call for a unanimous vote of the jury in death sentencing decisions. State Rep. Chris Sprowls, a former prosecutor who chairs the House Judiciary Committee, said it is a priority for him.
“We have to act,” Sprowls said in an interview with the Herald/Times last month. “By the time we conclude our business, we have to have a death penalty statute that can be relied upon and that’s legal, so that victims have access to justice.”
Even if the court hadn’t posted Wednesday’s ruling online too early, a second error threatened to upend it: A typo.
Instead of writing that death penalty laws in section 921.141 of Florida Statutes were unconstitutional, the court identified section 941.141 — a statute that does not exist.
Contact Michael Auslen at email@example.com. Follow @MichaelAuslen.