[Deathpenalty] death penalty news----TEXAS, VA., N.C., FLA.

[Rick Halperin]

Feb. 22



TEXAS:

Criminal intent protections should extend to mentally ill


There are approximately 350,000 inmates with a mental illness, yet only around 
35,000 mentally ill patients in psychiatric hospitals. Mentally ill inmates 
account for anywhere from 5-10 % of death row inmates. Persecuting those with 
mental illness is reprehensible, especially considering we protect other groups 
who cannot fully understand their actions.

In the 2005 court case Roper v. Simmons, the Supreme Court ruled the death 
penalty unconstitutional for juveniles, stating that scientific and 
sociological research shows that juveniles lack maturity and a sense of 
responsibility when compared to adults. This juvenile underdevelopment 
diminishes their "mens rea," or criminal intent. Thus, they should not receive 
such severe punishment.

Since that case, protections for juveniles have expanded, specifically in 
regard to life without parole. First, the court eliminated life without parole 
sentences for all except homicide cases. Then, it eliminated all life without 
parole sentences. Now, it has ordered retroactive review of previous life 
without parole sentences to determine their legitimacy.

Considering the psychological research (moral sentiments notwithstanding), 
these are positive steps forward. Keeping a child in prison for the rest of 
their life is nonsensical. Psychology professor Jessica Church-Lang discusses 
the psychological illegitimacy of such punishments.

"Both psychology and neuroscience research are showing us that the person and 
the brain change," Church-Lang said. "So no, I'm not convinced you should be 
judged throughout life for behaviors performed at one age."

So, the precedent of recognizing that certain persons have incomplete 
neurodevelopment and thus diminished criminal intent has been established. 
However, we still prosecute many that may not be able to neurologically control 
their actions - 56 % of state prisoners have some sort of mental health 
problem.

Sociology professor William Kelly recognizes a problematic trend in these 
cases. Such individuals may not be completely capable of understanding their 
actions. If this is true, "mens rea" should provisionally protect them from 
prosecution.

"Who with a mental health problem might be able or might not be able to form 
the requisite intent?" Kelly asked. "There's no movement in the direction of 
trying to take 'mens rea' seriously."

Juveniles cannot legally have full criminal intent due to their not fully 
developed brains. Those with neurodevelopmental disorders that inhibit their 
intentionality lack these protections. We should be protecting these groups in 
the same way that we now protect juveniles.

Now, I am not advising that we let every criminal who may have such problems 
run free, but we should reform the system to help them with their problems. We 
should clinically diagnose and psychiatrically help the mentally ill. We should 
treat people who need help as people who need help.

But instead of doing these things, we keep 10 times as many mentally ill 
persons in prison than in hospitals. We execute the mentally ill when they do 
not fully understand the gravity of their actions. When people are sick, we do 
not give them help; we give them an orange jumpsuit and a final meal.

(source: David Bordelon is a philosophy sophomore from Houston; The (Univ. 
Texas) Daily Texan)

*********************

12 Texas death row inmates were undocumented


Bernardo Tercero was a 20-year-old laborer in the United States illegally when 
he murdered a Houston high school teacher while robbing a dry cleaner. Though 
he'd been arrested twice before and thrown out of the country, he kept coming 
back.

2 months before gunning down a Dallas police officer, Juan Lizcano was arrested 
for driving drunk. He, too, was in the country illegally. Federal immigration 
officials apparently were not told of his arrest.

And Juan Carlos Alvarez lived in the country illegally for almost 10 years 
before participating in 2 drive-by shootings in Houston that left 4 people 
dead. Just 4 months earlier, an immigration judge had decided to let him stay 
in the country.

Of the 251 men and women on Texas death row, 12 committed their crimes while in 
the country illegally, according to an analysis of data obtained by The Texas 
Tribune. Their crimes span almost 3 decades and 5 presidential administrations 
- 2 Democrats and 3 Republicans - and their victims include old and young, 
children, husbands, wives and parents.

Whether federal immigration officials attempted to remove these 12 men - or 
knew of their existence - is difficult to discern. Immigration and Customs 
Enforcement officials declined to release immigration records for 9 of the 12 
inmates, citing a concern for their privacy. It did agree to release records 
for Tercero, Lizcano and Alvarez.

Reviews of trial transcripts, court records and other documents tell a dozen 
stories of smaller crimes and missed connections ultimately leading to 18 
deaths on Texas soil at the hands of men able to enter the country easily, and 
stay with little challenge to their presence.

Here, distilled from multiple sources, are the cases:

Bernardo Tercero

VICTIM: Roger Berger, teacher

DATE: March 31, 1997

"Please don't die. Please don't die," Melinda Winn Berger pleaded with her 
husband as he lay on the floor of Park Avenue Cleaners in Houston with a bullet 
in his head.

It was supposed to have been a quick stop before dinner. While his wife stayed 
in the car, Robert Berger, a 38-year-old English teacher at Reagan High School, 
ran in with their 3-year-old daughter, Jordan.

It was almost closing time. Bernardo Tercero, brandishing a gun, and an 
accomplice entered the store and demanded money.The store manager would later 
testify that Tercero grabbed Berger by the arm and pushed him back, shooting 
the teacher in the back of the head when he tried to get away.

Tercero and his accomplice fled with the money from the cash drawers. Melinda 
Berger rushed inside and found her husband mortally wounded. Robert Berger died 
in the hospital the next day.

Eventually caught, Tercero argued that the shooting wasn't premeditated, saying 
he and Berger were struggling when "the gun went off."

Tercero, then 20, was a Nicaraguan national who had been arrested twice on 
theft charges in Harris County in 1994 and 1995, and was caught trying to slip 
across the border illegally in 1996.It appears he returned voluntarily to 
Mexico at least once. Otherwise, nothing in his immigration records indicates 
if federal agencies knew about his theft arrests, or made an effort to remove 
him from the country.

Juan Lizcano

VICTIM: Brian Jackson, police officer

DATE: November 13, 2005

Brian Jackson, a 5-year veteran of the Dallas Police Department, was almost 
done with his shift when he and other officers responded to a domestic 
disturbance call at the home of Marta Cruz. Her ex-boyfriend showed up at her 
house drunk and fired a shot into the ceiling. Juan Lizcano accused Cruz of 
cheating on him and said the next bullet was intended for her.

When police arrived, Lizcano ran, down an alleyway and shot at the officers. 
The 2 wound up face to face when Lizcano rounded a corner, and Jackson fired 3 
times. Lizcano fired once and Jackson died. Other officers converging on the 
scene arrested Lizcano.

It wasn't his 1st run-in with police. Lizcano, a then 28-year-old Mexican 
national, had been arrested for a DWI just 2 months before. There's no 
indication he ever came in contact with federal immigration officials, who 
released records showing that they had no information on when Lizcano entered 
the country illegally.

Juan Carlos Alvarez

VICTIMS: Michael Aguirre, Adrian Aguirre, brothers

DATES: June 6, 1998 and June 17, 1998

On June 6, 1998, 21-year-old Juan Carlos Alvarez, a member of the Southwest 
Cholos, opened fire with an assault rifle on a group of people gathered outside 
an apartment complex in west Houston. 2 brothers, Michael Aguirre, 16, and his 
brother Adrian, 20, were killed, and 6 others injured. Alvarez, who records 
show had planned the drive-by shooting suspected that some of his targets were 
members of a rival gang, La Primera.

Later that month, Alvarez killed 2 more young men at an apartment complex in 
southwest Houston, shooting them at close range in the back and face with a 
shotgun.

Testimony later revealed that none of the 4 victims were members of the rival 
gang.

Immigration officials knew Alvarez, a Mexican national. He had entered the 
country illegally through Brownsville in 1989. He was served with a notice to 
appear in court, but it's unclear when exactly that was handed down. He was 
found not removable from the country and granted relief by an immigration judge 
on February 5, 1998.

But by that time, Alvarez already had a long record. He was charged with 
aggravated assault with a deadly weapon in February, received deferred 
adjudication, and was charged again in May 1996. That's when immigration 
officials placed a hold on Alvarez only to lift it 3 months later, county 
records show.

2 years later, he was charged with engaging in organized crime for conspiring 
to commit murder, aggravated robbery with a deadly weapon and aggravated 
assault with a deadly weapon.

Those cases appear to have been dismissed when he was charged and convicted of 
capital murder for the shootings. Immigration officials issued another hold on 
Alvarez in June 1998 after the 2 shootings.

Walter Sorto

VICTIMS: Roxana Capulin and Maria Rangel, restaurant workers

DATE: May 31, 2002

Roxana Capulin and Maria Rangel were supposed to close up for the night after 
working the late shift at El Mirador restaurant in Houston.

But 30 minutes after she called to say she was headed home, Jesus Capulin's 
wife hadn't shown up. No one answered when he called El Mirador.

Alarmed, Jesus Capulin drove the to restaurant in search of his wife, and ran 
into Maria Rangel's husband doing the same thing. The men broke into the locked 
building but found no one inside.

The 2 women were found dead the next morning in Capulin's Dodge Durango, which 
was abandoned a few miles south of the restaurant. Capulin, a 24-year-old 
mother of 2, had duct tape over her eyes and mouth; Rangel, a 38-year-old 
mother of 2, had duct tape over her eyes and mouth, and her wrists were bound 
with the tape. Each had been raped and shot in the head.

Walter Sorto, an El Salvador native who had lived in the country illegally 
since 1996, was behind the attack. Though he initially went to police as a 
witness and blamed his 2 accomplices, the 24-year-old laborer later implicated 
himself.

It wasn't Sorto's 1st run-in with police. In June 1999, he had been convicted 
of carrying a weapon and sentenced to 10 days in Harris County jail. Later that 
year, he was convicted of misdemeanor theft and sentenced to 3 days in jail. In 
late 2000, he was granted deferred adjudication for 10 years for the aggravated 
robbery of a man in Harris County.

Citing Sorto's privacy, immigration officials declined to release records that 
would show whether they were told of his previous arrests and convictions, or 
had ever attempted to remove him from the country. County records show 
immigration officials placed a detainer on Sorto in August 2002 a few days 
after he first contacted police as a witness to the killings.

Ramiro Ibarra

VICTIM: Maria de la Paz Zuniga, teenager

DATE: March 6, 1987

Originally from Mexico, the Zuniga family was living in Waco in March 1987 when 
Francisco Zuniga headed home to pick up his 16-year-old sister to go shopping. 
He found Maria de la Paz Zuniga's bruised, bloody and partially undressed body.

Maria Zuniga's face appeared to have been beaten, and her throat and shoulders 
were wrapped in yellow wire. Her dress was pulled over her waist and her 
underwear appeared to have been ripped off. A medical examiner would later 
confirm she died of ligature strangulation caused by the yellow wire.

Witnesses put Ramiro Ibarra, a 32-year old former neighbor, at the scene. DNA 
samples from Ibarra matched the blood found under Maria's fingernails and semen 
left in her body and on her underwear. Police also found similar yellow wire in 
Ibarra's car.

Ibarra, a Mexican national living in the country illegally, had previously been 
convicted for unlawfully carrying a weapon and received probation for driving 
while intoxicated. He had also been arrested in December 1988 for a misdemeanor 
theft.

Citing Ibarra's privacy, immigration officials declined to release records that 
would show whether they were told of his previous arrests and convictions, or 
had ever attempted to remove him from the country.

Carlos Manuel Ayestas

VICTIM: Santiaga Paneque, elderly woman

DATE: September 5, 1995

When Elim Paneque returned to his Houston home shortly after noon to have 
lunch, he found it ransacked and his 67-year-old mother, Santiaga Paneque, 
dead. The killer was 26-year-old Carlos Manuel Ayestas, a Honduran national, 
with a long record. In 1990, he'd been caught in California twice for 
possessing heroin and cocaine he planned to sell and was put on probation. A 
year later he was convicted of burglary, and sentenced to two years in jail for 
the burglary charge and three more for violating probation on the narcotics 
charge. It is unclear when he was released. Ayestas apparently traveled back 
and forth from Honduras several times, and after 1994 re-entered the country 
illegally. He wound up in Houston where he was arrested for misdemeanor theft 
in July 1995 and spent 10 days at the Harris County jail. Two months later, 
police found Santiaga Paneque lying face down in a pool of her own blood and 
vomit. Her eyes, neck and ankles were bound by silver duct tape while her 
wrists were bound with an electrical cord from an alarm clock.

Ayestas' fingerprints were found on a roll of duct tape left on a bathroom 
counter, and on the tape removed from Paneque's ankles.

Citing Ayestas' privacy, immigration officials declined to release records that 
would show whether they were told of his previous arrests and convictions, or 
had ever attempted to remove him from the country. County records show 
immigration officials placed a hold on Ayestas 2 years after the murder after 
he was convicted.

Edgardo Cubas

VICTIM: Esmeralda Alvarado, teenager

DATE: January 18, 2002

Esmeralda Alvarado left her boyfriend's house in Houston's East End around 9:30 
p.m. and headed towards a nearby convenience store to use the pay phone.

That's where 22-year-old Edgardo Cubas and a male accomplice caught sight of 
the 15-year-old high school sophomore and forced her into their truck. The men 
would later claim they meant only to rob Alvarado, but when they realized she 
had no money, they took turns raping her in the back of their truck and Cubas 
forced her to perform oral sex on him.

They drove to a secluded road where Cubas pulled Alvarado out of the vehicle 
and fatally shot her in the head before driving off. A county employee found 
her partially clad body 4 days later.

Cubas, an Honduran national who entered the country illegally, confessed to 
Alvarado's murder and a series of other offenses - aggravated robberies, 
shootings, sexual assaults and murders - committed between 2001 and 2002.

Citing Cubas' privacy, immigration officials declined to release records that 
would show whether they ever had contact with Cubas, or were aware of his 
presence in the country. County records show immigration officials placed a 
detainer on Cubas in August 2002 after he was arrested and charged for 
Alvarado's murder.

Hector Medina

VICTIMS: Javier and Diana Medina, children

DATE: March 4, 2007

3 years. 8 months. Those were the ages of Hector Medina's 2 children, Javier 
and Diana, were when he shot them with a .25 caliber pistol. Irving police 
responding to a call of shots fired found 27-year-old El Salvador native Hector 
Medina lying in his front yard with a self-inflicted neck wound. Inside, they 
found Diana dead in a wooden crib. Javier, who had been shot in the head and 
neck, was brain dead at the time.

Medina's legal team argued that the murders were fueled by the infidelity of 
his girlfriend, the children's mother. It took a Dallas County jury about 6 
minutes to convict Medina of capital murder.

Citing Medina's privacy, immigration officials declined to release records that 
would show whether they ever had contact with Medina, or were aware of his 
presence in the country.

Victor Saldano

VICTIM: Paul Ray King, computer salesman

DATE: November 25, 1995

It was completely random.

Paul Ray King, a 46-year-old computer salesman,was in the parking lot of a 
Plano grocery store when Victor Saldano and an accomplice forced King into 
their car at gunpoint. They drove to a secluded road near Tickey Creek where 
Saldano stopped the car and forced King into the woods.

Saldano, a 23-year-old Argentine national living in the country illegally, 
would later tell a jailer he shot King 4 times, then got closer to fire once 
more into King's head to ensure he was dead.

He stole King's wallet and watch, drove the car back into town and abandoned it 
on the side of the highway.

Citing Saldano's privacy, immigration officials declined to release records 
that would show whether they ever had contact with him, or were aware of his 
presence in the country.

Gilmar Guevara

VICTIMS: Tae Youk and Gerardo Yaxon, convenience store clerks

DATE: June 2, 2000

"Shoot, shoot, shoot" Gilmar Guevara's accomplices urged as they robbed a 
Houston convenience store.

2 attendants, Tae Youk, 50, and Gerardo Yaxon, 21, were working the late shift 
when an armed Guevara and 2 other men entered the store just after midnight. 
Guevara said they were there to burglarize the store. When one of the store 
attendants hit him, Guevara started shooting, killing both men.

Youk was a former pastor who had worked at the convenience store for only a few 
months to help support his family. Yaxon was working to send money back to 
family in Guatemala and save up enough to return.

Guevara, 30 years old at the time and originally from El Salvador, was living 
in the country illegally and had a long criminal history. In 1994, he was 
granted deferred adjudication for a misdemeanor theft charge in Harris County. 
Months later, he was charged with unlawfully carrying a weapon. In December 
1994, he was sentenced to 20 days in jail for the unlawful use of a criminal 
instrument. That same month, he was charged with the unauthorized use of a 
vehicle.

In 1995, he was charged with auto theft, and federal immigration officials 
issued a detainer for Guevara, meaning he presumably would be turned over to 
them for deportation after completing his 9-month sentence in the Harris County 
Jail.

Whether he was removed from the country is unknown. Citing Guevara's' privacy, 
immigration officials declined to release records that would show whether they 
deported Guevara, or knew of his previous arrests and convictions.

Obel Cruz-Garcia

VICTIM: Angelo Garcia Jr., child

DATE: September 30, 1992

During a late night home invasion, 2 men wearing ski masks broke into a south 
Houston apartment where Angelo Garcia Jr. lived with his mother and her 
boyfriend.

Obel Cruz-Garcia was among the men who proceeded to sexually assault Garcia's 
mother and tie, gag and beat her boyfriend. They took the 6-year-old boy with 
them when they left. Cruz-Garcia and his accomplices stabbed the boy and 
weighted down his body before dropping him into a Baytown lake.

Angelo Garcia's murder wasn't the 1st time Cruz-Garcia had come in contact with 
police. He had been previously charged with unlawfully carrying a weapon in 
1990 when he was sentenced to 30 days in jail.

In 1991, he was charged with possession of crack cocaine. Evidence gathered 
later would show that the boy's parents were part of Cruz-Garcia's 
cocaine-trafficking operation. Cruz-Garcia, originally from the Dominican 
Republic, was charged with Angelo Garcia's death in 2008 but wasn't convicted 
until 2013.

Citing Cruz-Garcia's privacy, immigration officials declined to release records 
that would show whether they were told of his previous arrests and convictions, 
or had ever attempted to remove him from the country. County records show 
immigration officials placed a detainer on Cruz-Garcia in 2010 - 2 years after 
he was charged with capital murder.

Felix Rocha

VICTIM: Rafael Fuentes, security guard

DATE: November 26, 1994

On the night he was murdered, Rafael Fuentes was working as a security guard at 
a Houston nightclub.

Felix Rocha and an accomplice approached Fuentes and tried to take the gun from 
his holster. The security guard resisted, and the men struggled over Rocha's 
gun before a shot went off.

Witnesses placed Rocha and his accomplice at the scene. Rocha - who had been 
involved in a physical confrontation with Fuentes shortly before the murder - 
later confessed.

Rocha, a Mexican national living in the country illegally, had been previously 
charged with aggravated robbery in 1993, but the charges were dismissed. In 
1995, he was charged with possession of marijuana and served four days in jail. 
Later that year, he was charged for assault.

Citing Rocha's privacy, immigration officials declined to release records that 
would show whether they were told of his previous arrests and convictions, or 
had ever attempted to remove him from the country. County records show 
immigration officials placed a detainer on Rocha in November 1997 after he was 
charged with capital murder; that hold was lifted the day he was placed on 
death row.

(source: Texas Tribune)






VIRGINIA:

What happens if state is unable to execute Ricky Gray?


The last time the commonwealth of Virginia was unable to carry out a death 
sentence appears to have been more than 6 decades ago and was due, in the words 
of a prison official, to "an act of God."

On June 27, 1952, a bolt of lightning hit the power line to the former Virginia 
State Penitentiary on Spring Street in Richmond. The strike damaged the 
electric chair 3 days before the scheduled execution of Albert M. Jackson Jr. 
for rape.

Authorities were unable to obtain the materials necessary for repairs, delaying 
Jackson's execution until Aug. 25 of that year.

The situation remains unclear, but recent statements by the Department of 
Corrections suggest it may be unable to carry out an execution scheduled March 
16 - not because of divine intervention, but due to a shortage of a drug needed 
to execute Ricky Javon Gray should he opt to die by injection rather than in 
the electric chair. Critics are dubious about the department's claims.

Gray, 38, and accomplice Ray Dandridge killed at least 9 people. 7 were killed 
in Richmond in a 2006 rampage, among them were 4 members of the Harvey family 
who were murdered in their Woodland Heights home in South Richmond.

Dandridge was sentenced to life, and Gray to death, for the capital murders of 
the Harvey daughters, Ruby, 4, and Stella, 9.

Since 1995, Virginia death-row inmates have had a choice to die by 
electrocution or injection. A bill now before the General Assembly would allow 
the Department of Corrections to select the method if the inmate's choice is 
unavailable.

Gray must choose by 15 days prior to the execution date. If he refuses to 
select a method, state law - passed when lethal injection drugs were readily 
available - makes lethal injection the default method.

Last year, the Department of Corrections obtained 3 vials of pentobarbital from 
Texas and used 1 to execute Alfredo Prieto, who was implicated in the deaths of 
nine people in 2 states. Conceding the department has 2 vials left, prison 
officials insist, without further explanation, that they do not have enough to 
execute Gray.

The apparent contradiction has aroused suspicions among anti-capital punishment 
activists and others who point out that the department can change its execution 
protocol so that 2 vials of pentobarbital suffice if the current protocol 
requires more than 1 vial for back up.

In a news release last week, the Virginia Death Penalty Coalition said, "The 
DOC director has the authority to amend the lethal injection protocol to 
accommodate the existing stock of drugs in its possession to carry out 
executions."

Asked to respond, a spokeswoman for the department wrote in an email, "The 
director does have the authority to amend the protocol, yes."

Michael Stone, executive director of Virginians for Alternatives to the Death 
Penalty, complained that the department's claim it lacks the drugs necessary to 
execute Gray has been used in the General Assembly to push proposed legislation 
that would make the electric chair the default method. The Department of 
Corrections said it has not taken a position on the bill.

A corrections spokesman said last week that no one in the department could 
remember the last time it was unable to carry out an execution order.

Asked how and when a new execution date would be set for Gray if it becomes 
apparent the March 16 execution cannot not be carried out, Michael Kelly, a 
spokesman for the Virginia Attorney General's Office, said, "If a situation 
like that were to occur, we would certainly discuss it with our clients, but I 
can't comment or speculate on what legal advice might be provided."

Jackson, the man whose execution was delayed in 1952, was a 24-year-old 
African-American sentenced to death for raping a white woman in 
Charlottesville.

The Richmond Times-Dispatch reported that, two days before his execution, 
Jackson's lawyers, Spottswood Robinson III and Samuel W. Tucker, unsuccessfully 
sought a restraining order from a federal judge. They argued that since 1908, 
when the electric chair was installed in the penitentiary, some 50 
African-Americans had been executed for rape, but no whites had.

Before 1908, executions were carried out by hangings at various locations 
across the state.

Virginia officials countered in the 1952 Jackson case that the same racial-bias 
argument had been unsuccessfully raised 2 years earlier in the Martinsville 7 
case - 7 black men were executed for the rape of a white woman.

The current United States Courthouse on East Broad Street is now named in part 
for Spotts-wood Robinson.

(source: Richmond Times-Dispatch)






NORTH CAROLINA:

Closing arguments to begin in Travion Smith death penalty phase----Jury to 
decide on Travion Smith murder sentence


Closing arguments are scheduled to begin Monday in the death penalty phase of 
Travion Smith.

Last week, Smith was convicted of beating and stabbing of 30-year-old Melissa 
Huggins-Jones, who was found by her 8-year-old daughter beaten and stabbed to 
death inside their North Hills apartment in May 2013.

The same jury that convicted Smith of murder will decide whether he should get 
life in prison or the death penalty.

The defense has called several members of Smith's family to testify about his 
abusive childhood, trying to get the jury to spare his life.

Meanwhile, the prosecution only called the victim's now 10-year-old daughter as 
their witness.

The courtroom camera was ordered to be turned off during the testimony. But 
Hannah Jones talked about finding her mom dead in their apartment.

Smith was accused of the murder along with Ronald Anthony and Sarah Redden.

Last September, Anthony pleaded guilty to 1st-degree murder and was sentenced 
to life in prison without parole. The plea deal spared him the death penalty.

Charges against Redden, who agreed to testify against Smith, remain.

(source: WTVD news)






FLORIDA:

6 of area's 18 murderers on death row may receive penalty review


18 men convicted of committing murders in Okaloosa, Santa Rosa or Walton 
counties presently sit on death row.

Each of their sentences could in some form or fashion be impacted by a U.S. 
Supreme Court decision in a case that actually sprung from a trial held in 
Florida's First Judicial Circuit.

Even if none are touched by the decision, the way that circuit courts across 
the state decide whether the death penalty is warranted appears likely to 
change forever.

In a January decision, the U.S. Supreme Court ruled that a trial court relied 
too heavily on the presiding judge in the sentencing of Timothy Hurst, who 
received the death penalty in 2000 for the 1998 murder of co-worker Cynthia 
Harrison.

The homicide occurred during a robbery at a Popeye's restaurant in Pensacola.

"Hurst had the maximum authorized punishment he could receive increased by a 
judge's own fact-finding," the high court said in rendering its de-cision.

The Supreme Court holds that it should be left to the jury, not the judge, to 
decide whether a defendant should die for his or her crimes.

The federal court's ruling has spawned action within Florida's judicial and 
legislative branches of government.

Legislative action

On the legislative side, Florida lawmakers are negotiating changes to the way 
death penalty hearings are decided.

The hearings follow a conviction in a criminal case - almost exclusively 1st 
degree murder - and are almost a trial themselves.

Florida is the only state in the country that allows a 12-person jury to 
recommend, by a simple majority vote, whether or not a person convicted in a 
capital case should die.

The judge, who must rely heavily upon the jury recommendation, then imposes or 
rejects the penalty.

Lawmakers this year are taking action to give jurors more control.

While most states mandate a jury must unanimously vote for death before the 
penalty can be meted out, a compromise reached Wednesday would say in Florida 
that a 10-2 majority of jurors suffices.

"Today we will pass legislation to preserve the Florida death penalty and 
modernize the death penalty," state Rep. Matt Gaetz, R-Fort Walton Beach, said 
just prior to a Thursday floor vote to pass the measure.

The 10-2 measure was a compromise negotiated between the state's House and 
Senate. While the House pressed for a 9-3 jury vote to be the required 
standard, senators favored the vote be unanimous, as is the case in all states 
other than Alabama and Delaware.

Alabama requires a 10-2 vote. Delaware calls for jurors to unanimously agree on 
whether the defendant is eligible for the death penalty, but their sentencing 
recommendation can be split.

Compromise is 'progress'

Bruce Miller, the elected Public Defender for Florida's First Judicial Circuit, 
said he favors the state requiring juries to vote unanimously to impose the 
death penalty.

He called the 10-2 compromise "progress" but added that Florida will remain on 
questionable legal ground by rejecting the requirement of unanimity.

"You see a lot of references to Florida as an outlier state," he said. "10-2 
will still leave us in that stature and leave us open to challenges."

Another legislative tweak in death penalty case procedure will add a 
requirement that a jury be unanimous in deciding which "aggravators" justify 
imposing the death sentence, according to Bill Eddins, state attorney for the 
First Judicial Circuit.

All 12 jurors will be required to say, for instance, that a particular crime 
was "heinous, atrocious or cruel" enough to warrant death, or perhaps that it 
was pre-meditated in "cold and calculated" fashion, Eddins said.

Judicial reaction

Florida's Supreme Court is being asked to decide, in lieu of the Hurst v. 
Florida ruling, whether defendants in hundreds of death penalty cases across 
the state will have to be resentenced.

Miller said he suspects at least those who were sentenced after 2002 will be 
reheard.

"Virtually all of the defense arguments in death penalty cases since 2002 have 
used the argument the Supreme Court ruled on in Hurst," he said. "I think you 
can count on those coming back to court for a new penalty phase."

6 of the 18 from this region on death row were convicted after 2002. Those are:

--Barry Davis, sentenced Aug. 31, 2015, in Walton County for killing John 
Hughes and Heidi Rhodes. Jury voted 9-3 and 10-2 to recommend death.

--Steven Cozzie, sentenced Aug. 31, 2013, in Walton County for killing Courtney 
Wilkes. Jury voted 12-0 to recommend death.

--Robert Hobart, sentenced Dec. 3, 2012, in Santa Rosa County for killing 
Robert Hamm and Tracie Tolbert. Jury voted 7-5 to recommend death.

--Thomas McCoy, sentenced Nov. 19, 2010, in Walton County for killing Curtis 
Brown. Jury voted 11-1 to recommend death.

--Michael Hernandez, sentenced March 23, 2007, in Santa Rosa County for killing 
Ruth Everett. The jury voted 11-1 to recommend death.

--Jesse Guardado, sentenced Oct. 13, 2005, in Walton County for killing Jackie 
Malone. Jury voted 12-0 for the death penalty.

Eddins said the Florida Supreme Court entertained arguments just a few weeks 
ago that will bear directly on cases still moving through the laby-rinth of 
appeals any death penalty case results in.

'Harmless error' a view of contention

The question the Supreme Court must answer in the cases is whether or not the 
procedure by which the defendants were sentenced can be viewed as "harmless 
error," Eddins said.

Would, in other words, a standard different than the one used to reach the 
death recommendation have resulted in the same finding.

The Hernandez case won't be among those under consideration in this Supreme 
Court ruling. Eddins said Hernandez has exhausted all of his appeals.

Davis, having been so recently sentenced, has not yet had his initial appeal 
heard, Eddins said, so the Supreme Court will not only be reviewing his case 
for "harmless error" due to the federal ruling, but also any other errors made 
during the actual trial.

Miller, the public defender, finds it hard to believe the death penalty 
sentences in cases resolved after 2002 will be allowed to stand.

\"I don't think you can call it harmless error in a death penalty case," he 
said.

Is high court ruling retroactive?

Florida's Supreme Court is also weighing arguments about whether the U.S. 
Supreme Court's ruling is retroactive, Eddins said.

The decision in that case could impact regional death sentences stretching back 
as far as June 28, 1982, when Bruce Pace was sentenced to die in Santa Rosa 
County for the killing of Floyd Covington.

Jurors recommended 7-5 that Pace be put to death.

Others sentenced to death prior to 2002 include:

--Jeffery Hutchinson, sentenced Feb. 7, 2001, in Okaloosa County for killing 
four people. He waived his right to jury consideration and was sentenced to 
death by Circuit Judge Robert Barron.

--Norman Grim, sentenced to die Dec. 22, 2000, in Santa Rosa County for killing 
Cynthia Campbell. A jury recommended death by a 12-0 vote.

--Jeremiah Rodgers sentenced to death Nov. 22 2000, in Santa Rosa County for 
killing Jennifer Robinson. Jury voted 9-3 for the death penalty.

--Jonathan Lawrence, sentenced Aug. 16, 2000, in Santa Rosa County for killing 
Jennifer Robinson. Jury voted 11-1 for death.

--Lamar Brooks, sentenced Sept. 29, 1998, in Okaloosa County for killing Rachel 
Carlson and her infant daughter. Jury voted 10-2 in favor of death.

--Edward Zakrzewski, sentenced April 19, 1996, in Okaloosa County for killing 
Sylvia and Edward Zakrzewski. Jury voted 7-5 to impose the death penalty.

--Gary Whitton, sentenced Sept. 10, 1992, in Walton County for killing James 
Mauldin. Jury voted 12-0 for the death penalty.

--Ernest Suggs, sentenced July 15, 1992, in Walton County for the murder of 
Pauline Casey. Jury voted 7-5 to impose the death penalty.

--Gary Lawrence, sentenced Feb. 21, 1991, in Walton County for the murder of 
Michael Finken. Jury voted 9-3 in favor of death.

--Daniel Peterka, sentenced April 25, 1990, for killing John Russell. Jury 
recommended death by 8-4 vote.

--Frank Walls, sentenced Aug. 24, 1988, in Okaloosa County for killing Edward 
Alger and Ann Peterson. Jury recommended the death penalty by 7-5 vote.

--Bruce Pace, sentenced June 28, 1982, in Santa Rosa County for killing Floyd 
Covington. Jury voted 7-5 in favor of death.

Eddins said it remains unclear which way the Florida Supreme Court will 
ultimately rule on the death penalty cases, but he's confident his office has 
the resources available to handle whatever comes.

"As the state attorney for the First Judicial Circuit, I intend to prosecute 
any and all cases that have to be retried to the fullest extent of the law," he 
said.

(source: nwfdailynews.com)