By TERRY SPENCER, JESSICA GRESKO and BRENDAN FARRINGTON, Associated Press
FORT LAUDERDALE, Fla. (AP) — Not long ago Florida school shooting gunman Nikolas Cruz would have been awaiting an almost certain death sentence for killing 17 people in Parkland, even if the jury could not unanimously agree on his fate. .
Until 2016, Florida law allowed trial judges to impose a death sentence if a majority of jurors agreed. With a 9-3 vote Thursday supporting Cruz’s execution, Circuit Judge Elizabeth Scherer likely would have sent him to death row for the 2018 massacre at Marjory Stoneman Douglas High.
Now, however, a vote of less than 12-0 means an automatic sentence of life in prison without parole, a standard the Stoneman Douglas families and the head of the state attorneys’ association want to change. That would again put Florida in a clear minority among the 27 states that still have the death penalty, where almost all require a unanimous jury.
Ed Brodsky, president of the Florida Association of Tax Lawyers, believes that next year the Legislature will consider changing the law it passed after a couple of court decisions rejected the previous law.
“When there is an overwhelming majority and sentiment about what the maximum penalty should be, should a minority voice be able to dominate and hijack justice?” said Brodsky, the elected state attorney for Sarasota County and its neighbors.
Governor Ron DeSantis at a news conference on Friday criticized the ruling but did not specify what changes he would support.
“We need to make some reforms to better serve crime victims and crime victims’ families and not always go out of our way to do everything we need to for crime perpetrators,” DeSantis said.
Cruz, 24, pleaded guilty a year ago to the murder of 14 Stoneman Douglas students and three staff members on Feb. 14, 2018. That left it up to a jury of seven men and five women to decide whether he would be sentenced. to death or life without parole.
The three-month trial included horrific videos, photos and testimony from the prosecution about the Cruz murders. That was followed by defense testimony about her biological mother’s heavy drinking during pregnancy that witnesses say created a brain-damaged individual who began displaying erratic, bizarre and violent behavior at age 2.
After seven hours of deliberations, jurors announced Thursday that they unanimously agreed on the prosecution’s argument that aggravating factors such as multiple deaths and Cruz’s planning existed, but not whether they outweighed mitigating circumstances. Scherer will impose Cruz’s life sentence on November 1.
“If this was not the most perfect death penalty case, then why do we have the death penalty?” said Linda Beigel Schulman, the mother of slain teacher Scott Beigel.
But some defense attorneys and capital experts said it was not surprising that jurors could not agree unanimously. Only 18 death sentences were handed down across the country last year, two of them in Florida.
The latest Gallup poll showed that 54% of Americans favor the death penalty, up from 80% in the mid-1990s. And while all of Cruz’s jurors said they could vote for the death penalty of death if elected, they did not say they supported it.
“At first glance, you think, ‘My God, how can you not vote for the death penalty?’” said Richard Escobar, a Tampa defense attorney and former prosecutor. He has tried capital cases in both roles. “But you have to reflect and think to yourself, ‘If this person really did have a mental illness, you shouldn’t put the death penalty on him because he got that mental illness through no fault of his own.'”
Robert Dunham, executive director of the Death Penalty Information Center, said Cruz’s case has a lot in common with the 2012 shooting at an Aurora, Colo., movie theater that killed 12 people. In that case, 11 jurors voted for death, while one disagreed based on testimony about the shooter’s mental illness. That meant life in prison.
“It is not a question of whether the murder merits the death penalty. (Cruz) is clearly the type of case where a jury could reasonably impose the death penalty,” Dunham said. “The question is ‘Does the defendant deserve the death penalty?'”
Florida’s law allowing majority jury voting was in place for decades before it was struck down, but it was an outlier. Almost all death penalty states either required unanimity over those years or adopted it. Alabama allows a death sentence after a 10-2 vote. Missouri and Indiana allow the judge to decide if jurors unanimously agree that aggravating circumstances exist but cannot agree on a sentence.
Then, in 2016, by an 8-1 vote, the US Supreme Court threw out the Florida law, saying the judge had too much weight in the decision.
The Legislature passed a bill that required a 10-2 jury recommendation, but the state Supreme Court struck it down. In 2017, the law was changed to require a unanimous jury.
Three years later, however, DeSantis, a Republican, replaced three retiring Florida judges with more conservative jurists, and the state court reversed the earlier decision. He said a death recommendation no longer needed to be unanimous, but lawmakers through three annual sessions have not changed the law from unanimity. DeSantis never pushed them.
David S. Weinstein, a Miami criminal defense attorney and former prosecutor, also doesn’t think DeSantis and the Legislature will unanimously make any changes next year; that would risk the US Supreme Court throwing out the state law again.
“That ship has sailed,” he said.
But will Cruz’s sentence make Florida prosecutors less likely to seek the death penalty?
Craig Trocino, a University of Miami law professor who previously handled death penalty appeals, doesn’t think so.
“It might even harden your resolve,” he said.
Still, he said, it’s hard to make broad predictions about the impact marginal cases like Cruz’s will have. No US mass shooter who killed as many or more as Cruz had ever gone to trial: Nine were killed by themselves or by police during or immediately after the attack. A tenth is awaiting trial in Texas.
On Cruz’s side, it’s rare for attorneys to have so much documentation to support his extenuating circumstances. The Broward public defender’s office also had higher-quality attorneys to assign to Cruz’s case and more money for investigations than their counterparts in smaller jurisdictions typically have, he said.
In those counties, “Mitigation would be a witness and Mom would say, ‘He was always a problem child,’” Trocino said.
Gresko reported from Washington, DC Farrington reported from Tallahassee, Florida. AP reporter Anthony Izaguirre in Tallahassee contributed to this report.
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