DARA KAM

The News Service of Florida

For the second time in a month, a circuit judge has ruled that Florida’s new death-penalty sentencing law is “patently unconstitutional” because it does not require unanimous jury decisions for death to be imposed.

Hillsborough County Circuit Judge Samantha Ward on Thursday sided with defendant Michael Keetley, an ice cream truck driver who was charged with murdering two men and injuring four others in 2010.

Florida lawmakers hurriedly crafted a new death-penalty sentencing process this year, in response to a U.S. Supreme Court decision in January that overturned the old law because it gave too much power to judges, instead of juries.

Under the new law, juries have to unanimously find that at least one aggravating circumstance exists in order for defendants to be eligible for the death penalty. The law also requires juries to weigh whether sufficient mitigating factors exist to outweigh the aggravating circumstances, but the law is silent about whether those decisions must be unanimous. The law also requires at least 10 jurors to recommend the death penalty, a departure from the old law, which required a simple majority of jurors.

But, agreeing with Keetley’s lawyers, Ward ruled that the new law “runs afoul” of the Supreme Court decision, which came in a case known as Hurst v. Florida. Prosecutors argued that the requirement to find at least one aggravator, unanimously and beyond a reasonable doubt, was sufficient to comport with a previous U.S. Supreme Court decision, in a case known as Ring v. Arizona.

“But it defies logic, and the dictates of Ring through Hurst, to have the jury find one of the prerequisites unanimously and beyond a reasonable doubt (that at least one aggravating factor exists), but not the other two prerequisites (that sufficient aggravators exist and that they outweigh the mitigating circumstances),” Ward wrote.

Ward’s decision Thursday was the second time a circuit judge has found that Florida’s new law is unconstitutional. The Florida Supreme Court has also been inundated with arguments about the constitutionality of the law and is poised to decide on the issue.

Miami-Dade County Circuit Judge Milton Hirsch ruled May 9 that unanimous decisions are required in imposing death sentences, rather than recommendations from majorities or super-majorities of juries.

Ward’s ruling dealt with the fact-finding phase of the sentencing process.

The Sixth Amendment guarantee to a trial by jury “unequivocally demands that a jury unanimously find the existence of any fact that subjects a defendant to a sentence in excess of that statutorily authorized by a guilty verdict beyond a reasonable doubt,” Ward wrote Thursday. “Florida’s existing death penalty sentencing scheme is incongruous with this decree.”