Unconstitutional Because Only a Bare Majority Of

STATE OF FLORIDA,
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 TO DECLARE SECTION 921.141, FLORIDA STATUTES

UNCONSTITUTIONAL BECAUSE ONLY A BARE MAJORITY OF

JURORS IS SUFFICIENT TO RECOMMEND A DEATH SENTENCE

The Defendant, Grady Nelson, by and through undersigned counsel, moves that this Court enter its order declaring section 921.141, Florida Statutes, unconstitutional for the reasons stated below:

The Defendant is charged with a Capital Homicide in which the State is seeking the Death Penalty.
Grady Nelson was married to the victim, Angelina Martinez. Grady and Angelina had one child from their marriage, Grady Jr. Angela Martinez also had two children, “RM” and “MM”, who were Mr. Nelson’s stepchildren. Both stepchildren are borderline retarded and RM may be autistic.
In early December 2004, Mr. Nelson was charged with the sexual battery of his stepdaughter Sexual Battery C/N 640940-C. Mr. Nelson was released from the Dade County Jail, Metro West on January 6, 2005. Mr. Nelson apparently had an on-going dispute with his wife who had a restraining order and had changed her telephone numbers, as Mr. Nelson was contacting her from jail.
After his release, Mr. Nelson went to his house. He was angry and upset because she had changed the locks. He also was angry because she had received a letter from the State Attorney’s Office that made it appear she was cooperating with them. That day he had sexual relations with both his stepchildren as well as his wife.
On January 7, 2008, police say Mr. Nelson had sexual relations again with his wife and stepdaughter, and then killed his wife and stabbed his stepchildren.
The Defendant entered a plea of not guilty.
Under our state's death penalty jurisprudence, the jury's vote of seven to five favoring death is sufficient to constitute a death recommendation. Rose v. State, 425 So.2d 521 (Fla. 1983).
The jury's role is advisory, Combs v. State, 525 So.2d 853 (Fla. 1988), but its advice is of considerable importance. If the jury returns a death recommendation, the sentencing court is required to give it "great weight," and a life recommendation is to be followed unless "no reasonable person could differ" that only death is the appropriate sentence. Grossman v. State, 525 So.2d 833 (Fla. 1988); Tedder v. State, 322 So.2d 908 (Fla. 1975). In determining guilt of a criminal charge, the United States Supreme Court has declared unconstitutionally unreliable a guilty verdict by less than a "substantial majority" of twelve jurors, Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (guilty verdict by nine members of twelve-person jury not unconstitutional). Although Johnson involved a sixth amendment claim, it incorporates due process and equal protection analysis.
When a defendant is exposed to death as a possible punishment, "there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305 (1976). But instead of heightened reliability, Florida's statutory scheme invites error by using the constitutionally inadequate fact finding procedure of a bare majority verdict.
The defense recognizes that the Florida Supreme Court has rejected attacks on the statute based on lack of unanimity in the jury recommendation. James v. State, 453 So.2d 786 (Fla. 1984). However of all the states which employ juries in capital sentencing, only one, Florida, allows a death penalty recommendation by a bare majority.
For the foregoing reasons, section 921.141, as applied, violates the fifth, sixth, eighth and fourteenth amendments to the United States Constitution, and Article I, sections 9, 16, 17, 21 and 22 of the Florida Constitution.

WHEREFORE, the Defendant moves that this Court enter its order:

1. Declaring section 921.141 unconstitutional, and precluding the death penalty in this cause; or

2. Granting such other relief as may be appropriate.

I HEREBY CERTIFY that a true and correct copy of the aforesaid has been mailed to the Office of the State Attorney, 1350 N.W. 12th Avenue, Miami, Florida 33136-2111 this ___ day of May, 2009.

Respectfully submitted,

Swartz & Lenamon

100 N. Biscayne Blvd., Suite 3070

Miami, Florida 33132

(305) 579-9090

By:

Terence M. Lenamon

Florida Bar No.: 970476

THE STATE OF FLORIDA, Plaintiff,
vs.
GRADY NELSON,
Defendant.
______/ / IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CRIMINAL DIVISION
CASE NO: F05-000846
JUDGE: Colodny

ORDER GRANTING MOTION TO DECLARE SECTION 921.141, FLORIDA STATUTES UNCONSTITUTIONAL BECAUSE ONLY A BARE MAJORITY OF JURORS IS SUFFICIENT TO RECOMMEND A DEATH SENTENCE

THIS CAUSE having come before this Court to be heard on Defendant’sMOTION TO DECLARE SECTION 921.141, FLORIDA STATUTES UNCONSTITUTIONAL BECAUSE ONLY A BARE MAJORITY OF JURORS IS SUFFICIENT TO RECOMMEND A DEATH SENTENCE, and the Court being advised of the premises, it is hereby:

ORDERED AND ADJUDGED that the MOTION TO DECLARE SECTION 921.141, FLORIDA STATUTES UNCONSTITUTIONAL BECAUSE ONLY A BARE MAJORITY OF JURORS IS SUFFICIENT TO RECOMMEND A DEATH SENTENCE is GRANTED, and it is further ORDERED that section 921.141, Florida Statutes, is declared unconstitutional because only a bare majority of jurors is sufficient to recommend a death sentence.

DONE AND ORDERED in chambers in Dade County, Florida this ____, day of ______, 2009.

______

Circuit Court Judge

ORDER DENYING MOTION TO DECLARE SECTION 921.141, FLORIDA STATUTES UNCONSTITUTIONAL BECAUSE ONLY A BARE MAJORITY OF JURORS IS SUFFICIENT TO RECOMMEND A DEATH SENTENCE

ORDERED AND ADJUDGED that the MOTION TO DECLARE SECTION 921.141, FLORIDA STATUTES UNCONSTITUTIONAL BECAUSE ONLY A BARE MAJORITY OF JURORS IS SUFFICIENT TO RECOMMEND A DEATH SENTENCE is DENIED.

DONE AND ORDERED in chambers in Dade County, Florida this ____, day of ______, 2009.

______

Circuit Court Judge