Fully Informed
15 Minutes with FIJA
15 Minutes with FIJA - 21 November 2022
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15 Minutes with FIJA - 21 November 2022

Audio recording and notes from the presentation segment of our live 21 November 2022 weekly 15 Minutes with FIJA Zoom session

Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA resources, events, etc. and other related items of interest we come across. It is followed by a short Q&A session to address any questions about the session topics or other jury-related questions. This is an abbreviated summary of the presentation on 21 November 2022, not including the Q&A.

Click here to register for the live sessions through the end of December 2022.

Death Sentences Imposed by Judicial Override Still Being Scheduled in Alabama

Judicial override in death penalty cases is a scheme in which the jury merely recommends an advisory sentence of either life without parole or death. Since it is only considered advisory, that sentence can be overridden by the trial judge if the judge disagrees with the jury’s findings regarding the mitigating and aggravating factors.

The Equal Justice Initiative noted in its 2011 report entitled “The Death Penalty in Alabama: Judge Override” that Alabama was the only state in the country whose judges routinely overrode jury sentences of life without parole to unilaterally impose the death penalty. At the time, Alabama, Florida, and Delaware were the only three states in the country to allow judicial override, but nobody in either Florida or Delaware had been on death row due to judicial override since 1999.

On the other hand, EJI pointed out, Alabama judges had used judicial override 107 times since 1976, 92% of the time to replace a jury’s recommendation of a life sentence with the judge’s preferred sentence of death, and there is evidence that significantly more of these overrides take place in years when judges are up for re-election. So we’re not talking about sentences that are imposed so much based on the merits, as imposed based on a sort of campaign strategy, even if unconscious, by people whose jobs are on the line. Moreover, the report states, “Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country.”

In 2016, the United States Supreme Court addressed the matter in Hurst v. Florida, ruling that a judge making findings of fact regarding the aggravating and mitigating factors to justify a death sentence violated the Sixth Amendment right to trial by jury.

Often you’ll hear it described that jurors judge the facts of a case while the judge gives them the law. It is portrayed as if there is some dichotomy there as a way to discourage jurors from exercising their right to judge the law as well as the facts. Well here is a situation in which judges have not only taken over the jury’s law-judging role, but also are encroaching on and taking over their fact-finding role.

The three states with judicial override subsequently abolished the ability of a judge to override a jury’s recommendation of a life sentence to impose the death penalty. Alabama was the last, abolishing it in April of 2017. However, as we saw with the jury unanimity situation we’ve talked about in previous episodes, lawmakers did not make this prohibition retroactive.

Last week Alabama attempted to execute Kenneth Smith, a death row resident for decades since a judge reversed the sentence of life without parole recommended by 11 out of 12 of his jurors and instead imposed the death penalty.

Eleventh hour attempts by the defense to bring the process to a halt failed. The Supreme Court turned down both Smith’s request for review of his case an a stay of his execution to allow such review. There is no public record of how the judges voted in this case.

It was only due to the state of Alabama’s ongoing troubles with their execution protocols that Smith’s life was spared, albeit temporarily. Government officials began attempting to insert two IV lines needed to kill Smith around 10 pm, but were only able to get one placed before they determined they would not have time to kill him before his death warrant expired at midnight. So he has a brief reprieve but no reason at this point to hope for a permanent one.

Smith is not the only person on death row facing similar circumstances. The Equal Justice Initiative reported earlier this month that 30 people sentenced to death by judicial override against the recommendations of their juries remain on death row in Alabama and account for some 20% of Alabama’s death row population.

I have previously discussed the injustice of the failure of the Supreme Court or the states which previously allowed non-unanimous jury convictions to apply the restored unanimity requirement retroactively. Likewise, having one standard of trial by jury going forward in new cases and yet leaving the old, unjust standard in place for those already sentenced to be killed by the state is yet another example of two-tiered justice due to laziness. It’s seen as inconvenient to look backward and bring these defective trials, verdicts, and sentences up to the standard that the government is saying is the MINIMUM requirement now. But that doesn’t mean they were any more valid. The government is just saying, “Lump it. We violated your rights , and we’re not going to fix it.”

One can imagine why the Equal Justice Initiative would have chosen its name given the blatant disregard for equal justice for all in the criminal legal system still today.

Virginia Officials Whine About People Exercising Their Right to Trial by Jury

In past 15 Minutes with FIJA sessions I reported on a change made in Virginia that decoupled trial by jury from jury sentencing. Not too long ago, if you exercised your right to trial by jury in Virginia, not only did a jury decide if you were not guilty or guilty, but then if it found you guilty of one or more charges, you had no alternative but to be sentenced by that jury. To be clear, we are not talking about capital cases here, but criminal cases in general.

But there was a catch. In Virginia, juries are legally bound to follow state sentencing guidelines when sentencing someone while judges were legally allowed more options to show mercy and give more lenient sentences. Typically, jury sentences were much harsher than delivered by judges. It was, therefore, a strong incentive (above and beyond the usual strong incentives defendants have everywhere) to forego the right to trial by jury.

However, this changed in July 2021 when a legal remedy for this problem took effect. Now if someone exercises their right to trial by jury and is convicted, they get to choose whether they are sentenced by their jury or by a judge, the person who has more leeway in granting mercy if they so choose. That way they can exercise their right to trial by jury without the extra risk of being sentenced by a jury held to a stricter sentencing scheme than a judge would be.

As a result, CBS19 News in Charlottesville is reporting that trials by jury are up 500% statewide and prosecutors are predictably very cranky about it. Louisa County Commonwealth's Attorney Rusty McGuire trotted out the old scare tactic of threatening for violent criminals to be released because the state can’t be expected to meet speedy trial requirements for all the new people exercising the Constitutionally-guaranteed right to trial by jury.

Virginia law generally sets the speedy trial clock for those incarcerated pre-trial at 5 months, not including delays the government deems justified. No word yet on whether that is actually happening or what the state has done to prevent it. I will, however, be keeping an eye on the situation as prosecutors are likely to try and use any problem they can scrape up as reason to get the legislature to take away jury rights once again.

As I say so frequently, without trial by jury, there is no jury nullification. So this is something worth fighting to keep.

Florida Death Penalty

Though the tone of their news story seems to portray this more of a negative than a positive, First Coast News reports that the death penalty is getting harder to impose in Florida. Due to the recently legislated requirement that death sentences be recommended by unanimous and not split juries, even a single juror can now prevent execution without any other jurors on their side.

Additionally, First Coast News reports that the state is revisiting all death sentences imposed since 2002 by non-unanimous juries. They must either be retried to secure a death sentence or they will default to sentences of life without parole.

“Of 122 capital trials held since jury unanimity became law, the state has lost 64 percent of the time (66 percent of new cases and 62 percent of resentencings). Only 40 of 122 cases resulted in death,” reports First Coast News.

Nonetheless, the state continues to seek the death penalty in numerous cases. In Duvall County alone, says Assistant Public Defender Al Chipperfield, there are 24 pending cases in which the death penalty is on the table.

This issue has been in the spotlight in Florida since Parkland shooter Nicholas Cruz was spared the death penalty, reportedly by three dissenting jurors voting for life without parole. As soon as that happened, several Florida government officials and hopefuls, including both of the main party candidates for governor, expressed interest and intention of reversing the legislation that made jury unanimity a prerequisite for a death sentence.

So you can be sure that is something I will be keeping an eye on in the next month when I start to review state legislative websites for pre-filed legislation. I will let you know if I see that come up at any point.

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Fully Informed
15 Minutes with FIJA
A roughly weekly update from the Fully Informed Jury Association on jury nullification and other jury-related news, plus highlights of FIJA resources and goings on. Join us for the live Zoom presentation followed by a brief Q&A session on most Monday evenings or listen to the presentation only on the podcast on most Tuesdays.
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Kirsten Tynan