It’s Supreme Court
season again! In response to positive feedback from last year’s posts on
Supreme Court briefs, I’m going to be posting my thoughts on briefs filed in
some of this year’s most high-profile cases.
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| Timothy Lee Hurst |
A death penalty case,
Hurst v. Florida, was argued earlier
this month. Hurst was convicted of murder and sentenced to death. That sentence
was overturned by the Supreme Court of Florida, and Hurst was re-sentenced,
again to death. Under Florida law, the jury is charged with rendering an
“advisory sentence,” but the ultimate sentencing decision is left to the judge.
Hurst challenges the constitutionality of Florida’s sentencing laws.
Seth Waxman is the
primary author of Hurst’s brief. Waxman was Solicitor General from 1997 to
2001, has logged more than 70 arguments before the Supreme Court, and has won
previous death penalty cases before the Court. He is one of the nation’s most
well-respected appellate advocates, and his brief—as expected—is stellar.
Facts that Make
You Go Hmmmm
Good advocates know
the power of helpful facts, even those that don’t speak directly to the issues on
appeal. Through good drafting, Waxman gets the following helpful facts before
the Court:
The jury voted for
death by a slim 7-5 majority. The jury deliberated for less than 2 hours in
deciding to recommend a death sentence.
Hurst suffered from
brain damage consistent with fetal alcohol syndrome, had “below average
adaptive functioning skills,” and borderline intelligence (an IQ somewhere
between 69 and 78). At the time of the crime, Hurst was 19 years old but had to
be “reminded to take care of himself…and to bathe and dress appropriately.” Two
defense psychologists testified that Hurst was “mentally retarded,” yet the
judge rejected Hurst’s claim that his mental retardation barred the imposition
of death under Atkins.
Theme
Waxman’s brief
contains several themes, one of which is apparent from the introduction: “Florida’s death penalty sentencing scheme, whereby juries provide only an
advisory role, is unconstitutional.”
By my count, the term
“advisory” appears nearly 20 times in the brief. Waxman hammers home his theme
time and again: “Florida juries play only an advisory role. Unanimity, and the
deliberation often needed to achieve it, is not necessary; only a bare majority
vote is required to recommend a death sentence.”
Waxman highlights the
constitutional problems with Florida’s death penalty sentencing laws in several
ways:
(1) To
recommend death, a jury must find at least one statutory aggravating factor.
Florida presented two in Hurst’s case, but Florida law prohibits using a
special verdict form that would reflect the jury’s vote on each aggravating
factor. Thus, three jurors could have voted for death based on one factor and
four could have voted for death based on the other factor, meaning that each
aggravator could have been rejected by two-thirds of the 12 jurors.
(2) The
judge makes the ultimate sentencing decision and actually holds a separate
hearing after the jury has recommended a sentence. At this hearing, the judge
may consider evidence not presented to the jury and may find the existence of aggravating
factors not presented to the jury.
(3) Florida’s
system goes against “centuries of practice recognizing unanimous verdicts,” “departs
from the uniform position of the federal system and 49 other States in capital
and non-capital cases,” and goes against the “bedrock principle that the jury
system is predicated on meaningful deliberations, which a simple-majority vote
cannot safeguard.”
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| Seth Waxman, from his days as SG |
These arguments hit
the law-trained reader hard. We know the importance of jury trials, of
requiring a finding of guilt beyond of a reasonable doubt, and of requiring
unanimity. Yet the Florida scheme seems to fly in the face of all those
foundational principles—A judge decides a death sentence and can base the
decision of evidence the jury never heard? Florida requires unanimity to
convict a defendant of murder but not to recommend a death sentence? Florida prohibits
special verdict forms that would tell a defendant which aggravating factor(s)
mattered to the jury? Florida is the only state that thinks this sentencing
scheme is proper?
Even to the most
critical reader, Waxman’s arguments are hard to ignore.
Short Sentences
I’ve talked numerous
times before about the power of short sentences. They can be used to emphasize
a point, break up dense prose, and add interest. Waxman peppers his brief with
these beauties:
Hildwin does not survive those later
decisions.
That is the case
here.
Apodaca was wrong when it was decided.
Similar logic applies
here.
Next week I’ll
discuss Florida’s response brief in Hurst
v. Florida.
