Plaintiff,
vs.
GRADY NELSON,
Defendant.
/ / IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO.: F05-846
JUDGE: COLODNY
MOTION FOR TWO JURIES
COMES NOW, the Defendant, GRADY NELSON, by and through his undersigned counsel and pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I, sections 2, 9, 16, 17, and 22 of the Florida Constitution, hereby moves this Honorable Court to strike the death notice, and make death not a possible penalty, and in support thereof, would state:
I. The Capital Jury Project & Foundational Case Law
The Capital Jury Project (AThe Project@) is a multidisciplinary study of how capital jurors make their life or death sentencing decisions; it was conducted in fourteen states and initiated in 1990 by university-based researchers with support from the National Science Foundation. William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 IND. L. J. 1043 (1995). The findings of the Capital Jury Project are based on extensive 3-4 hour interviews with people[1] who served as jurors in capital trials. Id. These interviews sought to examine Athe extent to which jurors= exercise of capital sentencing discretion is still infected with, or now cured of, the arbitrariness which the United States Supreme Court condemned in Furman v. Georgia[2], and the extent to which the principal kinds of post-Furman guided discretion statutes are curbing arbitrary decision-making - as the Court said they would in Gregg v. Georgia [3] and its companion cases.@ Id. (some footnotes omitted, some footnotes added).
After the Supreme Court found unconstitutional arbitrariness in death penalty statutes nationwide and invalidated them in Furman v. Georgia, 408 U.S. 238 (1972), the Court approved re-enacted statutes which included specific aggravating factors, a bifurcated proceeding, and appellate review to the highest state courts. The Court specified:
When human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.
Gregg. v. Georgia, 428 U.S. 153, 190 (1976). Post-Furman capital statutes included bifurcation which, along with statutory aggravating factors, intended to provide protection from the arbitrary and capricious imposition of the penalty of death. Id., at 195. A[T]hese concerns are best met by a system that provides for a bifurcated proceeding at which [the jury] is provided with information relevant to the imposition of sentence and provided with standards to guide its use of the information.@ Id.
These standards, including aggravating factors, were designed to Anarrow the class of persons eligible for the death penalty,@ and to justify the imposition of a more severe sanction. See Zant v. Stephens, 462 U.S. 862, 877 (1983); Lowenfield v. Phelps, 484 U.S. 231, 246 (1988). Aggravating factors, combined with mitigating factors, provide Aa meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.@ Furman, 408 U.S. 238 at 313.
Subsequently, in Lockett v. Ohio, 438 U.S. 586 (1978) , after recognizing that the penalty of death is qualitatively different from other penalties, the Supreme Court held Athat the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.@ Lockett at 604-605 (emphasis in original). ATo meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.@Id., 438 U.S. at 608. In fact,
Just as the state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. . . .The sentencer . . . may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.
Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982).
1
As a consequence of requiring consideration of mitigating evidence, the Supreme Court reversed a Florida defendant=s conviction as jury instructions at the time did not permit consideration of non-statutory mitigation. Hitchcock v. Dugger, 481 U.S. 393 (1986). Applying these standards specifically to Florida, to this jurisdictional court, the Court reiterated that, Ain capital cases the sentencer may not refuse to consider or be precluded from considering any relevant mitigating factor.@ Id., at 394. (Internal quotations and citations omitted.). Accord: Green v. Georgia, 442 U.S. 95 (1979); Penry v. Lynaugh, 492 U.S. 302 (1989); Mills v. Maryland, 486 U.S. 367 (1988).
In light of this controlling case law, The Project undertook its research guided by the following objectives: A(1) to systematically describe jurors= exercise of capital sentencing discretion; (2) to assess the extent of arbitrariness in jurors= exercise of capital discretion; and (3) to evaluate the efficacy of the principal forms of capital statutes in controlling arbitrariness in capital sentencing.@ Bowers, supra,at p. 1077. It is through research only that jurists can assess the efficacy of the current constitutionally prescribed standards and procedures for capital jurors and whether these standards and procedures are meeting the objectives set by the Court to protect the constitutional rights of capital defendants.
As perhaps the most well respected and scholarly research of this type to date, The Project is worthy of consideration in capital cases. Principal publications based upon The Project draw upon statistical data and personal accounts of jurors. Over 30 articles based on The Project=s data have been published to date. This Motion asserts that the findings of The Project with respect to jury instructions and early deliberations requires the striking of the Death Notice in this case in order to preserve defendant=s constitutional rights as required by foundational case law. Specifically, research proves that jurors make early decisions as to penalty and fail to properly include mitigation in their decision making matrix. Such conduct is contrary to constitutional standards and is impermissible.
II. JURORS DO NOT UNDERSTAND OR CORRECTLY APPLY SENTENCING PHASE JURY INSTRUCTIONS REGARDING MITIGATION
The Project reveals that capital jurors lack understanding of mitigation:
Jurors do not understand the term Amitigation@ and thus it is often dismissed. Unless the jurors believe that the evidence in mitigation either proves that the killing was not deliberate or furnishes an excuse
for the killing, such as insanity or duress, it does not provide adequate reason to impose a life sentence. In the absence of an understanding of how to take mitigation into account, jurors naturally turn to the analogy provided for by the guilt trial, namely defenses that serve as a justification or excuse.
1
Ursula Bentele and William J. Bowers, How Jurors Decide Death: Guilt is Overwhelming, Aggravation Requires Death, and Mitigation is No Excuse, 66 BROOK. L. REV. 1011 (2001) (emphasis added). As technical jargon within the legal system, the term Amitigation@ is foreign to most jurors and a number of the jurors interviewed for The Project failed to accurately define the word, and at times, confused it with aggravation. Id. Moreover, Ajuror comprehension of sentencing instructions is limited, especially with regard to instructions dealing with mitigation . . .[T]he defendant is typically disadvantaged by the misunderstandings.@Frank and Applegate, Assessing Juror Understanding of Capital Sentencing Instructions, 44 CRIME AND DELINQUENCY 3 (1998). Another study demonstrated that Athe less the jurors understand the mitigation instructions, the more likely they are to impose the death penalty.@ Richard Weiner, The Role of Declarative Knowledge in Capital Murder Sentencing, 28 JOURNAL OF APPLIED PSYCH., 2 (1998).
In Florida, the instructions on mitigation are minimal and uninformative. For example, Florida Jury Instruction in Criminal Cases 7.11 instructs the jury that the evidence to be presented is done so in order that they might determine, first, whether sufficient aggravating factors exist that would justify the imposition of the death penalty, and second, whether there are mitigating circumstances sufficient to outweigh the aggravating circumstances, if any. This ordering and wording emphasizes aggravation and minimizes the role of mitigation. The instruction goes on to state, A[a]t the conclusion of the taking of the evidence and after argument of counsel, you will be instructed on the factors in aggravation and mitigation that you may consider.@ Id. Later, the jury is told that,
[s]hould you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. Among the mitigating circumstances you may consider, if established by the evidence, are: . . . any of the following circumstances that would mitigate against the imposition of the death penalty:[4]
a.Any other aspect of the defendant=s character, record, or background.
b.Any other circumstances of the offense.
Florida Jury Instructions in Criminal Cases, 7.11. This is insufficient to meet the standards set in Lockettand its progeny. As for the burden of proof required for mitigation, the jury is instructed that Aa mitigating circumstance need not be proved beyond a reasonable doubt. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.@Id. Regarding the ultimate weighing of mitigating and aggravating circumstances, the jury is instructed that, A[y]ou should weigh the aggravating circumstances against the mitigating circumstances, and your advisory sentence must be based on these considerations.@ Id.
1
For the reasons stated above and set forth below, Defendant asserts Florida=s pattern jury instructions fail to adequately explain mitigation to juries. Capital defendants, therefore, still risk receiving arbitrary and capricious imposition of death. Accordingly, Defendant argues that the Court should strike the death notice in this case, as the instructions fail to educate jurors about mitigation and its application in the penalty phase. Defendant further and respectfully argues that not only ought the Court strike the death notice in this case, but it must do so as the law imposes upon the Court a duty to instruct juries on the law, and the current instructions fail to ensure a proper application of the law to the facts of a capital case, and fail to ensure that a jury carries out its constitutional duty to consider and give effect to mitigation.
III. The Requirement of Correct Jury Instructions
Under Florida law, a trial court judge has a duty to instruct the jury on the law. Rule 3.390(a), Florida Rules of Criminal Procedure, provides in pertinent part, AThe presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel.@ Due process requires instructions as to what the state must prove in order to obtain a conviction. See Screws v. United States, 325 U.S. 91, 107, 65 (1945). (AEven those guilty of the most heinous offenses are entitled to a fair trial.@). It is fundamental error to fail to instruct the jury correctly as to what the state must prove in order to obtain a conviction. State v. Delva, 575 So.2d 843 (Fla. 1991), Sochor v. State, 580 So.2d 595 (Fla. 1991).
In the present case, the instructions are insufficient to impart to the jury a basic understanding of the role and import of mitigation. Empirical data has shown that Anearly one-third of actual jurors were under the mistaken impression that the law required a death sentence if they found heinousness or dangerousness.@ Eisenburg, Garvey, and Wells, Jury Responsibility in Capital Sentencing: An Empirical Study, 44 BUFF. L. REV. 339 (1996); accord, Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 IND. L. J. 1043, 1091, n. 32 (1995). One Florida study of death penalty jurors found a significant number of jurors believed that the death penalty was mandatory or presumed for first degree murder. Geimer and Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Trials, 15 AM. J. CRIM. L. 1 (1989).
A significant number of jurors in death penalty cases believed that the death penalty was mandatory or presumed for first degree murder. In the death recommendation cases, over half of the jurors believed that death was to be the punishment for first degree murder, or at least that death was to be presumed appropriate unless the defendant could persuade the jury otherwise[5].
Id.
This data is consistent with other studies. AAstonishingly, more than half of the jurors said that they personally felt death is the only appropriate punishment for...premeditated murder and multiple murder.@ Bowers, Sandys, and Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors= Predispositions, Attitudes, and Decision Making, 83 CORNELL L. REV. 1476, 1504 (1998). AA substantial percentage of jurors believed the death penalty is the only appropriate punishment for convicted murderers.@ Garvey, The Emotional Economy of CapitalSentencing, 75 N.Y.L. SCH. L. REV. 26, 38 (2000). AThere appears to be a presumption that clear unequivocal proof of guilt justifies the death penalty.@ Bowers, Sanday, and Steiner, supra, 83 CORNELL L. REV. at 1497-98.
This Apresumption of death@ is based on data suggesting that Athe sentencing phase of capital trial commences with a substantial bias in favor of death.@ Eisenbery, Garvey, and Wells, supra, 44 BUFF. L. REV. 339. This inclination toward death Asuggests that a defendant with a confused jury may receive the death sentence by default, without having a chance to benefit from the legal standards designed to give him a chance for life.@ Eisenbery, Garvey, and Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV 1, 38, n.12 (1992). Amazingly, A[w]hen jurors report pre-deliberation indecision about either guilt or sentence, the undecided jurors tend to vote for death.@ Id. at 13.
These findings demonstrate that the current instructions are woefully inadequate to correctly instruct the jury as to the role and import of mitigation. This research shows that without substantially modified and improved instruction, a task that the Florida Supreme Court has not done, it is probable that defendant=s rights will be abrogated by the jurors= processes, making the striking of the death notice in this case and making death not a possible penalty the only viable remedy.
IV.PREMATURE DECISION MAKING ABOUT PENALTY
As previously stated, armed with this presumption of death, jurors impermissibly reach a decision regarding penalty before the sentencing stage of the trial begins. AInterviews with 916 capital jurors in eleven states reveal that many jurors reached a personal decision concerning punishment before the sentencing stage of the trial, before hearing evidence or arguments concerning the appropriate punishment, and before the judge=s instructions for making their decision.@ Bowers, Sandeys, and Steiner, supra, 83 CORNELL LAW REV. at 1477. Almost one half of the capital jurors in the eleven Capital Jury Project states thought they knew what the punishment should be during the guilt phase of the trial, and forty percent (40%) of Florida capital jurors took a stand on punishment before the penalty phase. Id., at 1488-89. That is, jurors begin the decision making process about the penalty phase of proceedings before instruction on mitigation or presentation of mitigation evidence contrary to a defendant=s constitutional rights.
The defendant has a constitutional right to an individualized sentencing which requires consideration of the character and record of the individual offender and the circumstances of the particular offense. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). When jurors prematurely form opinions as to penalty, as research proves they do, there is no such consideration. It is, therefore, imperative that the Court do all it can to ensure jurors appropriately undertake this analysis, and undertake it at the appropriate phase of the proceedings. Such education of the jury by the court must begin when the proceedings begin.
1
In Morgan v. Illinois, 504 U.S. 719 (1992), the Court considered the refusal of the trial court to permit defense counsel to conduct meaningful voir dire on the question whether the potential jurors would automatically impose the death penalty. After recognizing that general inquiries about Abeing fair@ and Afollowing the law@ are insufficient to detect such views, the Court held that jurors who are unalterably in favor of the death penalty Aby definition are ones who cannot perform their duties in accordance with law, their protestations to the contrary notwithstanding.@ Id., at 735.
[T]he belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual=s inability to follow the law. YAny juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of the law.
Such jurors obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty: they not only refuse to give such evidence any weight, but are also plainly saying that mitigating evidence is not worth their consideration and they will not consider it.
Id. at 735-736. Thus, any court or jury member to whom mitigating factors are irrelevant Ashould [disqualify himself or] be disqualified for cause, for that [person] has formed an opinion concerning the merits of the case without basis in the evidence developed at trial.@ Id. at 739. Moreover, in order to preserve a capital defendant=s constitutional rights, jury instructions and voir dire should take into account jurors= predisposition to prematurely begin the decision making process regarding penalty.
The fact that a large proportion of capital jurors, including Florida jurors, reach a decision about the appropriate sentence before the beginning of the penalty phase, or before they have evidence, arguments, and instructions on mitigation, renders the penalty phase proceeding constitutionally infirm. Regardless of whether jurors= inability to withhold forming an opinion comes from the death qualification process itself or jurors= personal views combined with the gruesome nature of capital case evidence, the fact is that a substantial percentage of jurors impermissibly Arefuse to give [mitigating] evidence any weight [and] are also plainly saying that mitigating evidence is not worth their consideration and they will not consider it.@[6] Id. at 735-736. Morgan=srequirement that capital jurors give consideration and effect to mitigation goes beyond the right of the defense to present mitigation evidence. Jurors who have already decided the defendant=s penalty prior to the sentencing phase fail to consider mitigation evidence and cannot, therefore, give effect to such evidence. Such failure violates the Eighth Amendment=s prohibition against cruel and unusual punishment, as well as the Sixth Amendment right to an impartial jury.