Skip to main content

Florida: Defense lawyers question death penalty jury instructions

Florida's death chamber
Florida's death chamber
Defense lawyers are attacking a new law aimed at fixing Florida's death penalty sentencing structure, which was struck down by the U.S. Supreme Court earlier this year because it gave too much power to judges instead of juries.

But the angst over the new law, crafted by the Legislature and signed by Gov. Rick Scott in March, isn't limited to defense lawyers - the Florida Supreme Court is questioning whether the law violates the state's constitutional guarantee to trial by jury.

Also, a Miami judge ruled last week that the law, which requires a 10-2 jury recommendation for the death penalty to be imposed, is unconstitutional.

Defense lawyers, meanwhile, are now objecting to proposed jury instructions related to the new law.

The proposed jury instructions, crafted by the Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases, lay out what judges must tell juries in capital death cases. The committee will consider changes at its next meeting in June, before sending the proposed rule to the Supreme Court, which could adopt the proposal or revise it.

Lawmakers hurriedly crafted the new death-penalty sentencing law in response to a U.S. Supreme Court ruling in January that Florida's system of allowing judges - and not juries - to decide whether defendants should face death is an unconstitutional violation of the Sixth Amendment right to a trial by jury.

The 8-1 decision, in a case known as Hurst v. Florida, dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it focused on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determinations of such aggravating circumstances must be made by juries, not judges.

Under Florida's new law, juries will have to unanimously determine "the existence of at least 1 aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, and it did away with a feature of the old law that had allowed judges to override juries' recommendations of life in prison instead of death.

Creating jury instructions for the new law "is especially difficult in this instance because there remains great uncertainty as to the constitutionality of the statutory law underlying the proposed instructions," Capital Collateral Regional Counsel-South Neal Dupree, whose office represents defendants who have been sentenced to death, wrote in comments submitted to the committee Monday.

Under the proposal, juries would be told that "different factors or circumstances may be given different weight or values by different jurors." That instruction would not comply with a U.S. Supreme Court decision, in a case known as Caldwell v. Mississippi, making it unconstitutional to instruct a jury in a way that will cause the jury to "minimize the importance of its role," Dupree wrote.

"We wanted the jury to be clear that there is a distinction between mitigating circumstances, which do not require unanimity and do not require a finding beyond a reasonable doubt, and the aggravating factors, which are required to be found unanimously and beyond a reasonable doubt," Pete Mills, an assistant public defender in the 10th Judicial Circuit who is chairman of the association's death penalty steering committee, said in a telephone interview Tuesday.

The Supreme Court, which put on hold indefinitely 2 executions after the Hurst decision, is also grappling with whether judges should use the new law to resentence death row inmates, whose lawyers argue that the sentences should be reduced to life in prison without parole because the prisoners were condemned under an unconstitutional system.

Also, the court recently raised questions about the new law's lack of unanimity in jury recommendations.

Source: Palm Beach Post, May 18, 2016


Florida's death penalty facing new questions as last lethal-injection drug supplier bans use

With the Sunshine State's death penalty already under scrutiny and siege, the last remaining federally approved sources for all three drugs used in Florida's lethal-injection cocktail have been banned for use in executions.

Wishing to align itself with saving lives rather than ending them, pharmaceutical mega-manufacturer, Pfizer, announced late last week that seven drugs it makes will be off limits from now on for use in capital punishment. More than 20 American and European drug companies have imposed similar bans.

"All of the major pharmaceutical companies in the United States stand together on this issue," said Robert Dunham, executive director of the Washington D.C.-based Death Penalty Information Center. "They do not want their medicines misused executing prisoners."

The impact on Florida and its 390 death row inmates is impossible to gauge because the Department of Corrections, citing state laws, will not divulge its drug suppliers, how much of a supply it has on hand or when its current supply will expire.

"When Florida's current supply runs out then Florida has a choice to make," Dunham said. "It could attempt to obtain these drugs elsewhere but for the most part that involves violating the law."

Pfizer's move will "make it even more difficult for states to obtain these drugs or replace the drugs when their current supply expires," Dunham said, but it doesn't necessarily mean the end of lethal injections.

That's because the nation's 32 death penalty states could turn to another buyer to get the required drugs from manufacturers without revealing the actual purpose they would be used for, or they could buy from distributors willing to violate resale agreements with manufacturers, or they could turn to small, loosely regulated pharmacies to make the drugs.

Alternatively, Florida could switch from a 3-drug lethal injection to a single-drug protocol - or it could even return to the electric chair.

"All of the major pharmaceutical companies in the United States stand together on this issue. They do not want their medicines misused executing prisoners" - Robert Dunham, executive director of the Death Penalty Information Center Other states have grappled with execution-drug issues in different ways. Ohio since last year has put executions on hold because it can't obtain the required drugs. Other states like Texas and Missouri have gotten lethal injection drugs from the small, loosely regulated pharmacies known as compounders. And Utah, looking for a back-up execution method, reinstated the firing squad.

"We don't even know if Florida has been using drugs from Pfizer, they won't tell us," said Marty McClain, a Fort Lauderdale lawyer who represents death row defendants seeking appeals. "It's certainly not in line with the Sunshine Laws in terms of the public finding out what's going on and what's being used."

The majority of the 32 states with the death penalty have similar secrecy provisions that prevent them from revealing their lethal drug sources.

Pfizer's action is just the latest, but not necessarily the most pressing challenge facing capital punishment in Florida.

"Florida's death penalty system is in tatters at the moment and not just because of the drugs," Dunham said. "There are questions as to whether Florida has a constitutional death penalty at all."

In January, the U.S. Supreme Court ruled that Florida's death penalty is unconstitutional because it gave jurors too little, and judges too much, say in the decision. As a result, the state supreme court must decide if Florida's 390 death row inmates were sentenced under a flawed system and should have their penalties converted to life sentences.

In response to the U.S. Supreme Court, state lawmakers earlier this year revamped the death-penalty sentencing law to require not just a majority, but a "super majority" or 10 of 12 jurors, to vote to impose the death penalty against convicted murderers. Florida, Alabama and Delaware are the only three death penalty states that do not require unanimous jury verdicts in death cases.

A week ago, a Miami-Dade trial judge struck another blow when he ruled that despite the Legislature's attempted fix, the state's death penalty remains unconstitutional because it still does not require a unanimous jury decision.

In 2013, Florida swapped pentobarbital sodium for midazolam as the unconsciousness-inducing first injection in its 3-drug intravenous process. It did so because its Danish manufacturer of pentobarbital sodium balked at its use in executions and prohibited its sale for that purpose. Midazolam has been blamed for botched executions in Oklahoma, Ohio and Arizona.

Florida's lethal injection cocktail is administered in 3 stages. After the midazolam knocks the condemned person into unconsciousness, vecuronium bromide induces paralysis and finally, potassium chloride triggers cardiac arrest.

Importing lethal-injection drugs from Europe would violate European export regulations. Importing them from anywhere else would violate federal law that prohibits medicines to come into the country without an approved medical use. Switching to a single drug protocol would create issues over which drug to use and where to get it, Dunham said.

Turning to the so-called compounding pharmacies poses its own set of dangers. They are regulated by state laws rather than the Federal Drug Administration. Products from compounding pharmacies could be impure, lack necessary potency or may not be properly sterilized or refrigerated, experts say.

Such pharmacies are typically used to create, or compound, small batches of medications tailored to an individual patient's needs such as strength, dosage, or allergies.

Products from compounding pharmacies "increase the likelihood that there will be bad batches of drugs used in executions and that also increases the risk that executions will be botched," Dunham said.

States have argued that secrecy is necessary to protect the identities of manufacturers so they won't be harassed, but death penalty opponents see otherwise.

"What in fact seems to be the case is that states needed to obtain secrecy to prevent the manufacturer from learning that its medicines were being misused in executions," Dunham said. "There is no legitimate medical purpose for executing somebody."

Source: Sun-Sentinel, May 18, 2016

- Report an error, an omission: deathpenaltynews@gmail.com - Follow us on Facebook and Twitter

Most viewed (Last 7 days)

20 Minutes to Death: Witness to the Last Execution in France

The following document is a firsthand account of the final moments of Hamida Djandoubi, a convicted murderer executed by guillotine at Marseille’s Baumettes Prison on September 10, 1977. The record—dated September 9—was written by Monique Mabelly, a judge appointed by the state to witness the proceedings. Djandoubi’s execution would ultimately be the last carried out in France before capital punishment was abolished in 1981. At the time, President Valéry Giscard d'Estaing—who had publicly voiced his "deep aversion to the death penalty" prior to his election—rejected Djandoubi’s appeal for clemency. Choosing to let "justice take its course," the President allowed the execution to proceed, just as he had in two previous cases during his term:   Christian Ranucci , executed on July 28, 1976 and Jérôme Carrein , executed on June 23, 1977. Hamida Djandoubi , a Tunisian national, was sentenced to death for killing his former lover, Elisabeth Bousquet. He was execu...

Texas: Dexter Darnell Johnson to die on August 15; Larry Ray Swearingen on August 21

Dexter Darnell Johnson's execution is scheduled to occur at 6 pm CDT, on Thursday, August 15, 2019, at the Walls Unit of the Huntsville State Penitentiary in Huntsville, Texas.  31-year-old Dexter is convicted of the murder of 23-year-old Maria Aparece and 17-year-old Huy Ngo on June 18, 2006, in Houston, Texas.  Dexter has spent the last 11 years of his life on Texas’ death row. Dexter was born and raised in Texas. He dropped out of school following the 9th grade. During the early morning hours of June 18, 2006, Dexter Johnson and 4 of his friends, Ashley Ervin, Louis Ervin, Keithron Fields, and Timothy Randle, were driving around in Ashley’s car, looking for someone to rob. The group discovered Maria Aparece and Huy Ngo siting in Maria’s vehicle on the street. Johnson took a shot gun and stood outside the driver’s side door, threatening to shoot Maria if she did not cooperate. Johnson demanded she open the door, and when she did, he threw her into the ...

Florida executes Michael King

Killer of stay-at-home mom whose death led to 911 reform is executed Michael King kidnapped Denise Amber Lee from her Florida home in broad daylight in 2008. If it weren't for a botched 911 call, Lee may have survived the ordeal.  Florida has executed a death row inmate for the rape and murder of a stay-at-home mom whose death exposed the vulnerabilities of the 911 system nationwide and led to reform within the industry.  Michael King, 54, was executed by lethal injection on Tuesday, March 17, for the kidnapping, rape and murder of 21-year-old Denise Amber Lee. King abducted the married mother of 2 young sons from her home in broad daylight on Jan. 17, 2008, less than an hour before Lee's husband returned from work. 

Texas inmate seeks to stop looming execution after codefendant confesses to double murder

In his appeal, James Broadnax, who wants a new trial, included a signed confession by his cousin saying he committed the 2008 Garland murders. With just 42 days remaining until his scheduled execution by lethal injection on April 30, 2026, in Huntsville, Texas death row inmate James Broadnax, 37, filed a new appeal Thursday with the Texas Court of Criminal Appeals, seeking to stay the date, remand his case for a new trial, and ultimately vacate his death sentence for the 2008 capital murders of music producers Stephen Swan, 26, and Matthew Butler, 28, outside their Zion Gate Records studio in Garland. A fabricated story The appeal centers on a signed written declaration from Broadnax's cousin and codefendant, Demarius Cummings, 37—dated March 11 and obtained by media outlets in which Cummings confesses that he alone planned the June 19, 2008, robbery, obtained the pistol used in the crime, and fired the fatal shots during the botched holdup that netted only $2 in cash and a 1995 Fo...

U.S. | These States Don’t Want You to See the Cruelty of Their Executions

The use of the death penalty has risen sharply in the United States, with more executions in 2025 than any year since 2009. It is a cruel and unjust development. In theory, the death penalty is reserved for “the worst of the worst.” In practice, it is very different. People who are executed for their crimes are disproportionately poor or intellectually disabled and often lacked good lawyers. They are also more likely to be sentenced to death if they have been convicted of killing a white person. Anthony Boyd, who maintained his innocence until Alabama executed him last year at age 54, had an inexperienced court-appointed lawyer and was convicted on disputed eyewitness testimony. Charles Flores, 56, has spent 27 years on death row in Texas for a murder conviction based solely on unreliable testimony from a hypnotized witness. Robert Roberson, who has autism, remains on death row there despite having been convicted on now-debunked evidence that he had shaken his daughter to death.

Alabama | Death row inmate granted clemency shares emotional message on day he was set to die

Alabama governor commuted death sentence of Charles Burton, 75, who didn't kill anyone An Alabama man who was outside a building when a man was killed in an armed robbery is looking at life as "a gift from God" after being granted clemency by the state’s governor just days before he was scheduled to be executed.  Charles "Sonny" Burton, 75, was sentenced to death for his role in the robbery of a Talladega AutoZone store that left a man dead in 1991.  While Burton left the store before Derrick DeBruce gunned down customer Doug Battle, he was tried and convicted as an accomplice, with prosecutors insisting Burton acted as the group’s leader in the armed robbery. 

Texas executes Cedric Ricks

A Texas man was put to death Wednesday evening for fatally stabbing his girlfriend and her 8-year-old son in 2013, apologizing profusely to her older son who survived with multiple stab wounds and witnessed the execution.  Cedric Ricks, 51, was pronounced dead at 6:55 p.m. CDT following a lethal dose of the sedative pentobarbital at the state penitentiary in Huntsville.  He was condemned for the May 2013 killings of 30-year-old Roxann Sanchez and her son Anthony Figueroa at their apartment in the greater Dallas-Fort Worth suburb of Bedford. Sanchez’s 12-year-old son, Marcus Figueroa, was stabbed 25 times and feigned death in order to survive.

Vietnam | 4 get death penalty in Ho Chi Minh City's drug trafficking ring

The People's Court of Ho Chi Minh City on Thursday sentenced four defendants to death for their roles in a large-scale drug trafficking ring in the city. Those receiving the death penalty for "illegal trading narcotic substances" were Nguyen Binh Dai (born in 1988), Mac Vinh Khiem (1991), Thai Duy Quang (1990), and Nguyen Binh Trieu (1972), all residents of HCMC. In the same case, Tran Tong Dung, born in 1974, was sentenced to 30 years in prison for illegal drug trading and storage. Huynh My Ngoc (2002), Thach Ngoc Yen Vy (2001), and Nguyen Dai Nghia (1997) received life sentences, while Pham Thanh Phuong (1997) from An Giang Province was sentenced to 20 years in jail for illegally transporting drugs.

Florida | Chadwick Willacy to be executed for burning Florida neighbor alive

A man convicted of the 1990 murder of his neighbor while burglarizing her home is scheduled to be the 6th person executed in Florida this year. Gov. Ron DeSantis on Friday, March 13, issued a death warrant for Chadwick Willacy, 58.  Willacy was in Marlys Sather's home when she arrived home from work unexpectedly. He struck her several times, tied her up, attempted to strangle her, and then set the house on fire after removing the smoke detectors and dousing her with gasoline, prosecutors said. Willacy's record to that point included some minor offenses in New York and Florida, mostly drug-related.

Missouri Man Said DNA Test Could Prove Innocence. He Was Executed Before a Court Ruled.

Lance Shockley died by lethal injection last year. State courts have rejected prisoners’ requests for DNA testing in recent years. Lance Shockley, a man on death row in Missouri, wanted items from the crime scene to undergo DNA testing to potentially prove his innocence. The court scheduled proceedings on his request — but the date set was for two days after his execution. Patty Prewitt can’t have her DNA tested — and fully clear her name — because her sentence was commuted and she is no longer in prison. And others, including Lamar McVay, who is serving 30 years for a robbery, can’t even get an answer from the state on his DNA testing request. He's still awaiting a ruling on a motion he filed in September 2022.