Jessica Masulli Reyes

The News Journal

Three assistant public defenders have argued to the state Supreme Court regarding the death penalty.

They say the death penalty law is unconstitutional and should be altered by lawmakers.

The Delaware Department of Justice has 30 days to respond to the arguments.

Three assistant public defenders have argued to the Delaware Supreme Court that the death penalty law is unconstitutional – and therefore needs to be fixed by lawmakers.

The attorneys from the Office of Defense Services filed a written argument Monday explaining why they believe Delaware's capital punishment policy violates the U.S. Constitution, especially in light of a recent U.S. Supreme Court decision that deemed Florida's similar scheme unconstitutional.

"The Delaware statute contains a number of unconstitutional provisions that cannot be exercised by this court in an effort to salvage the statute," the 58-page argument said. "Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts."

The Delaware Department of Justice now has 30 days to respond to these arguments.

The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection. Johnson had been convicted in the 2006 shooting death of Cameron Hamlin, 26, an aspiring musician.

Delaware is one of 32 states with capital punishment.

The U.S. Supreme Court in January continued a trend of eliminating outlying death penalty practices when it ruled 8-1 that Florida's procedure for death sentences is unconstitutional because it gives too much power to judges, and not enough to juries.

The opinion stemmed from the case of Timothy Lee Hurst, who was convicted of the 1998 murder of his manager at a Popeye's restaurant. A Florida jury was divided 7-5 in favor of death, and a judge imposed a death sentence.

Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death. However, judges in Delaware have not been using that power.

After the court reiterated that the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a death sentence, attorneys and judges questioned what that could mean in Delaware, where there are over two dozen pending death penalty cases and 14 men on death row.

Will death penalty ruling affect Delaware?

Bill to abolish Delaware death penalty fails in House

The Delaware Supreme Court agreed to consider five questions of the law and to hear arguments from both sides. At the same time, President Judge Jan R. Jurden issued a temporary stay on all pending capital murder trials while the issue is resolved.

The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer. State prosecutors are seeking the death penalty for Rauf.

In Delaware, the process of sentencing someone to death requires multiple steps.

Once a person is found guilty of first-degree murder, the jury must unanimously agree that the evidence shows beyond a reasonable doubt that at least one of 22 statutory aggravating factors has been met.

Then, each juror has to decide whether the aggravating factors outweigh the mitigating factors. That decision does not need to be unanimous, and the judge is not bound by those findings.

The jury's verdict is advisory, leaving judges with the final authority in sentencing.

Attorneys from the Office of Defense Services said in their argument that it is "crystal-clear that the judge is the independent and paramount capital sentencer" in Delaware. They went on to argue that Delaware is violating the Sixth Amendment by requiring a judge to make findings regarding aggravating and mitigating circumstances, and their relative weight, before a death sentence can be imposed.

"As the opinion in Hurst makes clear, any fact-finding that is a necessary precursor to a death sentence, rather than one of imprisonment, must be performed by a jury," the argument said. "The highest courts and legislatures of several states have likewise acknowledged that the Supreme Court’s Sixth Amendment jurisprudence requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each."

The attorneys went on to say that the practice of allowing juries to be non-unanimous is also unconstitutional.

"There is a nationwide consensus against non-unanimous jury verdicts in capital cases," the attorneys wrote. "No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous. That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality."

Robert Dunham, executive director of the nonprofit Death Penalty Information Center in Washington, D.C., said the issue of non-unanimous jury verdicts "is something in which Delaware is at constitutional risk."

He pointed out that Florida has found that non-unanimous verdicts are less reliable and account for a significant portion of the exonerations in the state. Following the U.S. Supreme Court decision, the Florida Senate and House agreed about eliminating the judicial override option, but are split over whether to eliminate the practice of non-unanimous juries.

In Alabama, state lawmakers have not introduced legislation that would eliminate the practice of judicial overrides, but did recently introduce a bill aimed at creating a commission to review the innocence claims of felons.

Delaware is grappling with its own fate regarding the death penalty. On top of the legal questions before the Delaware Supreme Court, a bill to abolish the death penalty failed in the state House of Representatives last month.

The House voted 23-16 against the bill after about two hours of emotional testimony and comments from lawmakers. One of the no votes was a strategic decision that was made so that a lawmaker who supports the legislation can file a motion to reconsider the bill.

The reconsideration will take place next week.

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.