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“Other punishments we have in mind for those who create insecurity in the society include ex…

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

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