Hurst v. Florida: Should a Non-Unanimous Jury Verdict Mean Life or Death?

The attorney for the State of Florida argued to the Supreme Court on Tuesday, October 13, 2015, that “there are some real benefits associated with judicial sentences.” This statement was made during the oral argument in Hurst v. Florida, Case No. 14-7505. The issue before the Court is “whether Florida’s death sentencing scheme violates the Sixth Amendment or Eighth Amendment in light of the Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002)?” It’s a curious statement considering the long standing belief in our jurisprudence that a jury of twelve ordinary citizens should be the arbiters of justice in our society.

The petitioner in this case, Timothy Hurst, was convicted of murder in Florida as the result of a robbery at a fast food restaurant where he worked. At a second sentencing trial, the jury verdict was 7 for death and 5 for life imprisonment. Part of the mitigating evidence presented at this trial was Mr. Hurst’s borderline intellectual disability and brain damage consistent with fetal alcohol syndrome. Apparently, the jury did not find Mr. Hurst ineligible for the death penalty under Atkins v. Virginia, but at least 5 jurors found the mitigating evidence outweighed any aggravating circumstances. In any other capital jurisdiction in this country, such a verdict would have been a victory for the defense. But not in Florida, because the trial judge conducted his own independent hearing and determined that death was the appropriate sentence. The jury was not even required to be unanimous on the aggravating circumstances it found.

This begs the question: why have a jury at all? If, according to the Florida scheme, the judge is required to conduct an independent hearing after the jury trial, where the judge can findaggravating circumstances based on evidence not presented to the jury, then what is the point of the jury? Why, because that is what the Sixth Amendment to our Constitution at the very least requires. Blackstone, the English legal commentator from the Eighteenth Century stated “the truth of every accusation . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.” W. Blackstone, Commentaries on the Laws of England *349–*350 (T. Cooley 4th ed. 1896). Even before the Constitution and Bill of Rights were ratified, each of the colonies required jury trials in serious criminal cases.

Juries are not infallible, and there have been many instances where juries were wrong in their verdicts, both as to guilt and as to the sentence to be imposed. There are many reasons for that fact, some of which have more to do with the way cases are prosecuted and defended than the fault of any particular jury. There are cases where prosecutors have withheld evidence that clearly would have exonerated the defendant. There are cases were defense counsel failed to conduct even the minimal investigation into a case, or even fell asleep during the trial. There are also cases where the judge presiding over a case influenced the jury’s decision in a negative way by their manner or instructions. These failures of the system do not, and should not, mean the jury’s role in the capital sentencing context is not relevant and significant. The safeguards by ways of appeals, both in state court and in federal court, are in place to guard against those shortcomings.

The Supreme Court’s capital jurisprudence supports the conclusion that the Florida scheme is unconstitutional, especially as applied to Mr. Hurst. As Justice Scalia suggested at the oral argument, the jury in Hurst was not clearly instructed that their determination of the aggravating circumstances was advisory only. This case also highlights one of the concerns articulated by Justice Breyer in his dissent to Glossip v. Gross, 135 S.Ct. 2726, 2776 (2015), to which Justice Ginsburg joined, that the death penalty is applied in an arbitrary manner. For as the attorney for Florida stated at the argument, “[the trial judge] can give mercy for any reason.” But then again, so can a jury. And in the Hurst case, the 5 jurors who voted for mercy were not validated by the Florida scheme. Florida’s scheme stands alone and should be invalidated. The Supreme Court should hold that a non-unanimous jury verdict in a capital case means life, not death.