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In re Standard Jury Instructions (Criminal)
SC05-960 | SC05-1890
ALL RISE.
HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA
NOW IN SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW
NIGH.
GIVE ATTENTION, AND YE SHALL
BE HEARD.
GOD SAVE THESE UNITED
STATES, THE GREAT STATE OF
FLORIDA, AND THIS HONORABLE
COURT.
>> GOOD MORNING.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT
SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, AND WELCOME
TO THE ORAL ARGUMENT
CALENDAR FOR THURSDAY, APRIL
19th.
THE FIRST MATTER WE WILL
CONSIDER THIS MORNING,
STANDARD JURY ININSTRUCTIONS
IN CRIMINAL CASES.
JUDGE HEATEN, ARE YOU GOING
TO LEAD OFF?
>> GOOD MORNING, MR. CHIEF
JUSTICE, JUSTICES.
MY NAME IS O. H. EATON, JR.
I AM A CIRCUIT JUDGE IN THE
18th CIRCUIT AND I CHAIR
YOUR HEARING COMMITTEE.
AFTER MANY MONTHS, NOW IT'S
COME TO YEARS, WE HAVE
FINALLY PRESENTED TO YOU A
VERSION OF THE PROPOSED JURY
INSTRUCTIONS IN CAPITAL
CASES FOR THE PENALTY PHASE.
I WILL BE ADDRESSING THE
SECOND AMENDED REPORTS
VERSION OF THOSE
INSTRUCTIONS, AND I WANT TO
DISCUSS SOME OF THE POINTS
IN THEM THAT ARE DIFFERENT
FROM THE STANDARD
INSTRUCTIONS THAT ARE
CURRENTLY IN PLACE.
FIRST, I THINK WE NEED TO
DISCUSS THE FRANKY PROBLEM.
IN THE FRANKY CASE, THIS
COURT CITED THE HENNYARD
CASE, AND IN THAT CASE, THE
PROSECUTOR AT VOIR DIRE TOLD
THE POTENTIAL JURORS THAT IF
THE CIRCUMSTANCES OUTWEIGHED
THE MITIGATING CIRCUMSTANCES
THEY WERE REQUIRED TO RETURN
A VERDICT OF DEATH PENALTY.
THIS COURT HELD THAT THAT
PARTICULAR STATEMENT WAS NOT
A CORRECT STATEMENT OF THE
LAW.
AND CITED PREEXISTING
AUTHORITY FOR THAT
PROPOSITION.
BECAUSE A JURY DOES NOT HAVE
TO RECOMMEND THE DEATH
PENALTY, EVEN IT IS FINDS
THE AGGRAVATING
CIRCUMSTANCES OUTWEIGH THE
MITIGATING CIRCUMSTANCES.
THIS IS PRACTICALLY
UNIVERSAL IN WEIGHING STATES
LIKE FLORIDA.
>> NOW, THAT IS, IF, IF
THERE HAS BEEN A
MISSTATEMENT.
WHAT YOU ARE SAYING --
>> THE CASE -- THE CASE IS
THAT -- CASES THAT WERE
CITELOAD HAD SOME KIND OF
REASON FOR THIS ISSUE --
CITED ALL HAD SOME KIND OF
REASON FOR THIS ISSUE TO
COME UP, AND IT WAS BECAUSE
THE PROSECUTOR MISBEHAVED.
>> BUT ARE YOU ALSO
PROPOSING THAT THAT KIND OF
STATEMENT BE GIVEN EVEN IF
THERE IS NO MISSTATEMENT,
THAT THE JURORS CAN AT ANY,
NEVER HAVE TO IN ESSENCE,
IMPOSE THE DEATH PENALTY, NO
MATTER WHAT THE AGGRAVATORS
AND MITIGATORS SAY.
>> YES, THE COMMITTEE'S
POSITION FROM READING THE
CASE LAW THAT IF IT IS THE
LAW, THAT THE JURY DOESN'T
HAVE TO IMPOSE THE DEATH
PENALTY WHICH -- WHEN THE
AGGRAVATING CIRCUMSTANCES
OUTWEIGH THE MITIGATING
CIRCUMSTANCES BECAUSE THE
PROSECUTOR MISBEHAVES IT
OUGHT TO BE THE LAW WHEN THE
PROSECUTOR DOESN'T
MISBEHAVE.
IT OUGHT TO BE THE LAW --
>> THE PROSECUTORS' ATTORNEY
ASSOCIATION AS I READ THEIR
COMMENT AS I READ THEIR
COMMENT IN OTHER KINDS OF
CIRCUMSTANCES WHERE THERE
HAS NOT BEEN A MISSTATEMENT
THAT SUCH A, AN INSTRUCTION
WOULD REALLY MAKE THE
IMPOSITION OF THE DEATH
PENALTY ARBITRARY AND, AND
VIOLATION OF ALL THE FEDERAL
COURTS THAT SEEM TO SUGGEST,
I MEAN, AS THE UNITED STATES
SUPREME COURT, THAT IN ORDER
TO HAVE A VALID DEATH
PENALTY, IT MUST BE, YOU
KNOW, NARROWED AND NOT
ARBITRARY, SO WHAT DOES YOUR
COMMITTEE SAY ABOUT THAT
PARTICULAR ARGUMENT?
>> IF YOU, IF YOU READ THE
VARIOUS FEDERAL CASES THAT,
THAT DEAL WITH STATES THAT
HAVE WEIGHING
RESPONSIBILITIES, YOU KNOW,
SOME STATES DON'T HAVE THE
JURY WEIGH THE AGGRAVATING
AND MITIGATING
CIRCUMSTANCES.
BUT IN THE STATES THAT DO, I
THINK YOU'LL FIND THAT THIS
RULE THAT THE COURT LAID
DOWN IS THE RULE THROUGHOUT
THE, THROUGHOUT THOSE
STATES.
THERE MAY BE SOME EXCEPTIONS
--
>> WHAT DO THE FEDERAL
COURTS DO IN TERMS OF THEIR
INSTRUCTIONS?
>> THEY REFER TO THESE, THIS
PARTICULAR PROPOSITION AS IF
IT'S JUST SOMETHING THAT
EVERYBODY KNOWS.
AND I, I CAN'T --
>> BUT IN THERE, THEIR
PATTERN INSTRUCTIONS, IN THE
FEDERAL COURTS, --
>> OH, I DON'T KNOW,
JUSTICE.
I DON'T KNOW.
I HAVEN'T READ THE FEDERAL
PATTERN INSTRUCTIONS.
I DON'T KNOW.
>> JUDGE EAT SNN.
>> YES, MA'AM.
>> YOUR CHARGE STARTED
BEFORE THE AVA, THE COURT
CAME OUT, THE AVA REPORT --
FINDINGS ABOUT -- CONFUSION
FROM THE CAPITAL JURY
INSTRUCTIONS AS THEY EXIST.
DID YOU HAVE A CHANCE TO
LOOK AT THAT REPORT?
>> WELL I HELPED WRITE --
>> WELL, DO YOU BELIEVE THAT
THE THE PROPOSED CHANGES
WILL ALLEVIATE WHAT --
CURRENT CONFUSION IN THE
CRITICAL AREAS?
>> WELL, THAT'S WHAT WE WERE
HOPING TO DO, AND THE SECOND
POINT I WANTED TO TALK ABOUT
HAD TO DO WITH JUST THAT.
INN FOR INSTANCE, IN OUR
PROPOSED INSTRUCTIONESS, WE
HAVE PROVIDED DEFINITIONS OF
WHAT AN AGGRAVATING
CIRCUMSTANCE IS AND WHAT A
MITIGATING CIRCUMSTANCE HAS
BEEN IS.
AND IT HAS BEEN OUR
COLLECTIVE CIRCUMSTANCE THAT
JURORS ARE CONFUSED ABOUT
THESE TERMS BECAUSE THEY --
IT'S UNFAMILIAR.
IT'S REALLY AN UNFAMILIAR
KIND OF TERRITORY TO TAKE
SOMEBODY IN FROM OFF THE
STREET AND PUT THEM IN A
JURY BOX AND SAY WE ARE
GOING TO GO THROUGH THIS
CAPITAL TRIAL AND WE ARE NOT
GOING TO DEL YOU WHAT AN
AGGRAVATING CIRCUMSTANCE IS
ALL ABOUT.
I MEAN, WHAT IS IT FOR?
SO THAT'S THE REASON WE
PROPOSE THAT IN ORDER TO TRY
TO CLEAR UP THOSE PROBLEMS.
>> ONE OF THE, OF COURSE,
THERE'S STILL I GUESS THE
DEBATE IN THIS STATE AS TO
HOW -- WOULD APPLY, BUT IT
SEEMS THAT PRETTY CLEAR THAT
AT THE VERY LEAST THAT THE
JURORS ARE THE FINDERS OF
THE FACT AS TO THE
AGGRAVATING CIRCUMSTANCES.
DID YOU YOUR COMMITTEE
CONSIDER WHETHER THAT
STATEMENT STATEMENT SHOULD
BE INCLUDED IN THE CAPITAL
JURY INSTRUCTIONS?
>> WHICH STATEMENT, JUSTICE?
>> THAT JURRIES ARE THE FIND
FINDERS OF FACTS AS TO THE
AGGRAVATING CIRCUMSTANCES.
>> I THINK THE INSTRUCTIONS
ASSUME THAT.
>> THEY TALK ABOUT -- JURY
SENTENCE.
>> RIGHT.
WELL, THE COURT HAS ALREADY
RULED THAT WE CAN'T SEND
THEM AN INTERROGGATORY AND
ASK THEM WHAT TA DECIDE.
-- THEY DECIDE.
SO I CAN'T DO THAT I DON'T
KNOW HOW TO APPROACH IT
ANYMORE THAN WHAT WE HAVE
DONE.
>> YOU HAVE PREVIOUSLY
SUBMITTED SOME SPECIAL
INTERROGGATORIES.
>> DR. STEELE WITHDREW THEM,
YES, MA'AM.
>> BUT THE OTHER ISSUE, AND
I WAS LOOKING AT THE DEATH
PENALTY STATUTES BUT IT'S
THE QUESTION ON THE BURDEN
OF PROOF ON WHETHER
SUFFICIENT -- SHOWN THAT ANY
AGGREGATING CIRCUMSTANCES
HAVE BEEN PROVED BEYOND A
REASONABLE DOUBT AND THE
JURY HAS DEFINED THE MORE
AGGRAVATING CIRCUMSTANCE --
TENDED TO BE ELIGIBLE FOR
DEATH.
BUT THE QUESTION IS WHETHER
SUFFICIENT AGRUIVATING
CIRCUMSTANCES EXIST, AND
THEN, SECOND, WHETHER
SUFFICIENT MITIGATING
CIRCUMSTANCES EXIST WHICH
OUTWEIGH THE AGGRAVATING
CIRCUMSTANCES.
>> RIGHT.
>> WHAT IS THE JURY TO THINK,
EVEN IN REVISED JURY SFRKSS
-- ININSTRUCTIONS WHOSE
BURDEN IS IT TO ESTABLISH
WHETHER THE AGRUIVATING
CIRCUMSTANCES -- AGGRAVATING
CIRCUMSTANCES OUTWEIGH THE
MITEDIGATING CIRCUMSTANCES.
HOW DO YOU --
>> THE WAY THE INSTRUCTION
READS, THE WAY THE STATUTE
READS IS THAT THE MITIGATING
CIRCUMSTANCES HAVE TO
OUTWEIGH THE MITIGATING
CIRCUMSTANCES.
WE TOOK THE POSITION
ORIGINALLY THATIATE SHIFTED
THE BURDEN OF PROOF
UNFAIRLY.
AND THE RECENT SUPREME COURT
REAL IN HELD BASICALLY THE
SAME THING.
>> WHAT IS THE JURY -- WHAT
IS THE BURDEN OF PROOF IF IT
SHIFTS, IF IT IS NOT SHIFT
THE BURDEN OF PROOF THEN THE
DEFENDANT HAVE TO SHOW THE
MITIGATING CIRCUMSTANCES
THAT OUTWEIGH THE
AGGRAVATING CIRCUMSTANCES.
IS THAT BY A PREPONDERANCE
OF EVIDENCE.
HAVE YOU EVER WE TALKED
ABOUT THAT?
>> NO, I DON'T THINK YOU
HAVE --
>> AND AGAIN HAVING BEEN ON
THIS COURT FOR MANY YEARS --
JURISPRUDENCE DOES THAT MEAN
-- THE JUROR READING THESE
INSTRUCTIONS, I WOULDN'T
KNOW.
>> RIGHT.
WELL ALL YOU WOULD KNOW IS
THAT THE AGGRAVATING
CIRCUMSTANCEVISE TO BE
PROVEN BEYOND A REASONABLE
DOUBT AND AND THE MITIGATING
CIRCUMSTANCES THEY JUST HAVE
TO BE REASONABLY CONVINCED
ABOUT.
AND THEY ARE SUPPOSED TO DO
SOMETHING THAT JUGTLED
SOMEHOW AND SUBJECTIVELY
MAKE A DECISION.
AND THAT'S --
>> -- ARBITRARY?
>> I AGREE WITH YOU, BUT,
BUT I DIDN'T WRITE THE
STATUTE, AND, AND THE COURT
HAS UPHELD IT, I GUESS
THAT'S WHERE WE ARE WITH IT.
>> WE HAVE NEVER FOCUSED ON
THAT FAMILIAR THING
[INAUDIBLE]
>> I WOULD LIKE TO TALK
ABOUT --
>> LET ME ASK YOU THIS,
JUDGE EATON, THAT, THE SENSE
NOW OF WHAT THE COMMITTEE
HAS DONE IN ITS SUPPLEMENTAL
REPORT IS TO BRING THE
INSTRUCTIONS IN CONFORMITY
AS BEST THE INSTRUCTIONS CAN
BE WITH THE STATUTE.
THAT -- IS THAT RIGHT?
>> YES, YES.
AS FAR AS THE AGGRAVATING
AND MITIGATING CIRCUMSTANCES
WEIGHING ITS CONCERN.
>> [INAUDIBLE]
>> RIGHT.
RIGHT.
>> YOU MADE SOME CHANGES
THAT WILL NOW BRING IT INTO
--
>> INTO LINE WITH THE CASE
LAW, YES.
>> [INAUDIBLE]
I GUESS YOU'VE ALSO
ADDRESSED THE, THE --
ATTORNEYS' CONCERN ABOUT THE
ISSUE ABOUT THE --
[INAUDIBLE]
WHETHER THEY ARE ON RARE
CIRCUMSTANCES, YOU'VE
CHANGED THAT TOO.
>> YES, WELL, WE ADOPTED
THEIR LANGUAGE.
WE THOUGHT IT WAS BET, SO WE
ADOPTED THE FLORIDA
PROSECUTING ATTORNEY'S
ASSOCIATION.
I WANT TO TALK JUST BRIEFLY
ABOUT THE PROPOSED VERDICT
FORM.
WE HAVE A PROPOSED VERDICT
FORM THAT DOES HAVE AN
INTERROGGATORY IN IT, AND
HERE IS THE PROBLEM.
THE LAW SAYS THAT THE
PROSECUTOR DOESN'T HAVE TO
ELECT BETWEEN THE THEORY OF
PREMEDITATION AND THE THEORY
OF FELONY MURDER.
AND SO BOTH OF THESE
THEORIES GO TO THE JURY.
WELL, THE PROBLEM WITH IT
WHEN YOU GET A GENERAL
VERDICT BACK FROM THE JURY
IS YOU DON'T KNOW WHETHER
THE JURY DETERMINED THAT THE
FELONY MURDER RULE WAS
APPLYING OR PREMEDITATION
WAS APPLYING.
WELL, I CAN ASSURE YOU THAT
IN EACH -- IN ANY OF THESE
CASES, THEY ARE GOING TO
COME FORWARD AND THEY ARE
GOING TO SAY, WELL, WE WANT
COLD CALCULATED AND
PREMEDITATED AND WE WANT
FELONY MURDER FOR THE
AGGRAVATING.
WELL, IF YOU DON'T KNOW WHAT
THE JURY DID, THEN YOU DON'T
KNOW WHETHER TO ALLOW
PARTICULARLY COLD CALCULATED
AND PREMEDITATED.
>> IS THAT THE -- WHAIS THE
PURPOSE OF THE ACTUAL
NUMBERS?
I MEAN, YOU HAVE, AS I
UNDERSTAND THE VERDICT FORM,
YOU HAVE BOTH OF THEM ON
THERE, AND YOU, YOU TELL THE
JURY TO SAY FOUR OF US AGREE
THAT IT WAS FELONY MURDER
AND, AND 8 OF US AGREED THAT
IT WAS PREMEDITATED MURDER.
>> RIGHT.
>> SO WHAT DOES THE NUMBER
--
>> THE NUMBERS ARE VERY
IMPORTANT TO ME, OR AT LEAST,
AND I'VE USED THIS VERDICT
FORM NOW IN A COUPLE OF
CASES.
BY THE WAY, IN EACH OF THOSE
CASES, I GOT 12 VOTES FOR
ONE OR THE OTHER.
OKAY?
BUT I TOLD THE PROSECUTOR,
YOU KNOW, IF, IF YOU DON'T
WANT TO ELECT -- ELECT,
THAT'S YOUR BUSINESS, BUT IF
I DON'T GET 12 VOTES ON ONE
OF THESE, YOU ARE NOT GOING
TO GET THAT AGGRAVATING
CIRCUMSTANCE BECAUSE IT
REQUIRES A UNANIMOUS
VERDICT.
>> [INAUDIBLE]
CAUSE THE PROBLEMS WITH THE,
THE CASE --
[INAUDIBLE]
LEGALLY INSUFFICIENT.
THE VERDICT FORMS THAT UP
HERE, THE COURT SPECIAL
VERDICT FORMS NEVER, I DON'T
RECALL SEEING THE NUMBER --
[INAUDIBLE]
ALWAYS ASSUME THAT EITHER
ONE JURY HAD -- --
[INAUDIBLE]
WOULDN'T THAT BE A CHANGE IN
THE LAW?
>> I DON'T THINK SO.
ALL I'M TRYING TO DO IS FIND
OUT WHAT THEY -- YOU KNOW,
WHAT THEY DETERMINED.
AND IT'S DIFFERENT BY THE
WAY, --
>> BUT IT'S GOING TO CREATE
PROBLEMS WITH THE
SUFFICIENCY OF THE EVIDENCE
IF WE FIND IT NOT SUFFICIENT
--
>> NO --
>> NO, BECAUSE YOU, YOU'VE
RULED THAT IT DOESN'T MAKE
ANY DIFFERENCE WHETHER THEY,
WHETHER SOME OF THEM THINK
WITH ONE THEORY AND SOME OF
THEM THINK WITH ANOTHER, AS
LONG AS THEY AGREE THAT IT'S
FIRST-DEGREE MURDER.
>> WELL, --
[INAUDIBLE]
>> WE'VE ALSO SAID THAT IT
DOESN'T MATTER WHETHER SOME
OF THEM AGREE ON CCP OR SOME
OF THEM AGREE ON HAC AS LONG
AS THEY ALLGRY ON AN
AGGRAVATOR EXISTS.
>> BUT WE ARE NOT TALKING
ABOUT THE PENALTY PHASE, WE
ARE TALKING ABOUT THE GUILT
PHASE.
>> BUT YOU WERE SAYING
BEFORE IF IT WASN'T
UNANIMOUS, YOU WOULDN'T
ALLOW THE AGGRAVATOR.
>> PROBABLY NOT, BUT BECAUSE
OF OUR CASE LAW, THAT SAYS
YOU DON'T HAVE TO BE
UNANIMOUS IN FINDING A
PARTICULAR.
>> THAT'S TRUE.
BUT WE'RE NOT TALKING ABOUT,
WE'RE NOT TALKING ABOUT THE
GUILT PHASE AND WE ARE NOT
TALKING ABOUT THE OVERALL
CONCEPT OF WHETHER THE
PERSON IS GUILTY OF
FIRST-DEGREE MURDER.
WE ARE TALKING ABOUT GIVING
THE TRIAL JUDGE SOME
DIRECTION ABOUT WHAT THE
JURY THOUGHT OF THE
EVIDENCE.
AND, IN ORDER TO TAKE A
DETERMINATION AS TO WHETHER
WE SHOULD ALLOW PARTICULAR
AGGRAVATING CIRCUMSTANCES.
REMEMBER, THE, THE HOLDING
THAT WE HAVE IN APRESENTI,
THE VERDICT, THE PENALTY IS
LIMITED TO THE FACTS THAT
ARE REFLECTED IN THE
VERDICT.
>> WE HAVEN'T YET, AND WE
SAID THIS IN STEELE, WE
HAVEN'T YET DEALT WITH THE
REPERCUSSIONS OF APRESENTI
AS FAR AS THE AGGRAVATORS
AND WHETHER IT MEANS THAT A
JURY MUST DECIDE THAT AN
AGGRAVATOR EXISTS, WHATEVER
IT IS.
THAT THEY SAY AN AGGRAVATOR
EXISTS OR THEY SAY THIS
MURDER OCCURRED IN A HEINOUS,
ATROCIOUS, OR CRUEL WAY SO
WE HAVEN'T YET, I GUESS,
REACHED THAT POINT.
>> I'M NEARLY OUT OF TIME.
I WOULD LIKE TO RESERVE A
MINUTE AND A HALF.
THANK YOU.
>> MS. SAUNDERS, YOU WANT TO
PROCEED NEXT?
>> GOOD MORNING.
MAY IT PLEASE THE COURT.
I'M PAULA SAUNDERS AND I'M
HERE TODAY ON BEHALF OF THE
FLORIDA ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS.
LET ME FIRST ADDRESS THE
INSTRUCTION REGARDING
WHETHER THE MITIGATING
FACTORS OUTWEIGH THE
AGGRAVATING FACTORS AND
WHETHER THE DEFENSE MUST
SHOW THE AGGRAVATING FACTORS
OUTWEIGH THE MITIGATING
FACTORS.
THE STERG COMMITTEE
INITIALLY RECOMMENDED THAT
THE INSTRUCTION READ THAT
THE JURY MUST DETERMINE
WHETHER AGGRAVATING FACTORS
EXIST, THAT OUT WEIGH ANY
MITIGATING FACTORS FOUND TO
EXIST, AND THE RATIONALE
GIVEN BY THE STEERING
COMMITTEE IS THAT MANY
JUDGES WERE ALREADY GIVENIN'
THIS INSTRUCTION.
WHEN YOU ACTUALLY READ THE
CASE LAW, WHAT'S VERY
INTERESTING IS THAT YOU SEE
EVEN IN PROSECUTORIAL
ARGUMENT, THIS IS WHAT'S
BEING PRESENTED TO THE JURY,
THAT IT'S LOGICALLY THE WAY
IN WHICH THE INSTRUCTIONS
SHOULD FOLLOW.
THE STATE HAS THE BURDEN OF
PROOF AS TO EACH AGGRAVATING
CIRCUMSTANCE BEYOND A
REASONABLE DOUBT.
THERE SHOULD BE A
PRESUMPTION IN FAVOR OF WHY
NOT IN FAVOR OF DEATH.
AND THE PROSECUTION,
PROSECUTION SHOULD BEAR THE
BURDEN OF SWAYING THE JURY
THAT DEATH IS THE
APPROPRIATE PENALTY.
AND THEY MUST SHOW NOT JUST
THEIR SUFFICIENT AGGRAVATING
FACTORS, BUT THE AGGRAVATING
FACTORS ARE SUFFICIENT TO
OUTWEIGH THE MITIGATING
FACTORS.
YOU KNOW, THE WAY THE
STATUTE READS, IT SAYS THAT
THE JURY MUST FIND THAT
THERE IS INSUFFICIENT WANT
MITIGATION WHICH WOULD
OUTWEIGH THE AGGRAVATION.
WELL, WHAT IS INSUFFICIENT
MITIGATION?
>> IT SAYS WHETHER
SUFFICIENT MITIGATING
CIRCUMSTANCES EXIST.
I HAVE THE STATUTE -- IN
FRONT OF ME.
>> OKAY.
BUT IT'S NOT A COUNTING
PROCESS.xD
AND WE NEED TO MAKE SURE
THAT THE JURY DOESN'T FIND
THAT THIS IS A COUNTING
PROCESS.
IT'S NOT JUST A BALANCING ON
THE SCALES IN TERMS OF
NUMBERS.
IF THERE'S AGGRAVATION, AND
WE KNOW EVEN ONE AGGRAVATING
FACTOR CAN BE SUFFICIENT TO
JUSTIFY IMPOSITION OF DEATH
BUT ONE AGGRAVATING FACTOR
MAY NOT OUTWEIGH MITIGATING
FACTORS BUT THE INSTRUCTIONS
SHOULD READ WHETHER THE
AGGRAVATION OUTWEIGHATHIZE
MITIGATION.
THIS IS ALIVATE AG--
ALLOCATE AGBURDEN OF PROOF
--
>> DO YOU ALSO FEEL THE JURY
SHOULD BE INSTRUCTED THAT NO
MATTER WHAT, THEY SHOULD
NEVER BE REQUIRED TO
RECOMMEND THE DEATH PENALTY?
>> ABSOLUTELY.
THAT'S THE LAW.
>> HOW IS THAT CONSISTABOUT
WITH -- CONSISTENT WITH THE
STATUTE THAT SAYS IF YOU
FIND AGGRAVATORS THEN ARE
THERE SUFFICIENT MITIGATING
CIRCUMSTANCES?
WHAT IF THEY FIND WHAT
AREN'T SUFFICIENT MITIGATING
CIRCUMSTANCES BUT WE'RE
STILL INSTRUCTING THEM YOU
ARE NEVER REQUIRED TO
RECOMMEND DEATH PENALTY.
>> WELL, I WOULD ASSUME THAT
IN ORDER FOR A JURY TO
RECOMMEND LIFE SENTENCE THEY
ARE GOING TO FIND SOMETHING
IN MITIGATION, WHETHER IN
CIRCUMSTANCES OF THE DEFENSE
OR IN BACKGROUND OF THE
DEFENDANT THEY ARE GOING TO
HAVE TO FIND SOMETHING IN
MITT GHAGS, BUT THE JURY IS
GIVEN TWO SENTENCING OPTIONS,
AND THE JURY IS DELIVERED
BODY THAT IS GOING TO COME A
RATIONALAL DECISION AS TO
WHICH OF THOSE SENTENCES ARE
APPROPRIATE.
IT IS A DISCRETIONARY
DECISION ON THE PART OF THE
JURY.
IT'S NEVER MANDATORY TO
IMPOSE LIFE OR TO IMPOSE
DEATH UNLESS THERE IS SIMPLY
NO AGGRAVATING FACTORS
FOUND, AND THEN OF COURSE --
IMPOSED OR RECOMMENDED.
BUT IT IS THE LAW.
FRANKLY, IT IS VERY CLEAR
THAT THE JURY HAS NEVER
REQUIRED TO RECOMMEND A
DEATH SENTENCE, SO LET'S
TELL THE JURY.
IF IT'S THE LAW, THEN LET'S
TELL THE JURY THAT THEY ARE
NEVER REQUIRED TO RECOMMEND
THAT.
>> DO YOU ALSO THINK WE
SHOULD RETAIN THE
ININSTRUCTION THAT ONLY
UNDER A RARE CIRCUMSTANCE
THAT THE JUDGE WOULD
OVERRIDE THE JURY'S FINDING.
>> YES, I THINK THAT IS
APPROPRIATE.
IT GUIDES THE JURY IN
RECOMMENDING -- THAT THE
RECOMMENDATION IS ADVISORY
BUT IT WILL -- IT IS
ENTITLED TO GREAT WEIGHT AND
WILL BE FOLLOWED EXCEPT IN
VERY RARE CIRCUMSTANCES.
I THINK THAT'S A VERY
APPROPRIATE INSTRUCTION.
TO GIVE THE JURY.
>> DOES THAT CONFORM TO OUR
LAW, TETTER AND OTHER CASES
LAW?
KEAN I BELIEVE.
>> I BELIEVE IT DOES, I
BELIEVE IT DOES.
I WOULD ASK THAT THE COURT
KEEP THE INSTRUCTION ON THE
GREAT WEIGHT THAT WAS IN THE
FIRST PROPOSED INSTRUCTIONS
AND NOT IN THE SECOND
AMENDED REPORT.
I ALSO WHOLEHEARTEDLY
ENDORSE THE SPECIAL VERDICT
FORMS.
I HAVE SEEN IT USED IN MANY
TRIALS.
I THINK IT ADDS CERTAINTY TO
THE PROCESS, AND IT'S VERY
GOOD.
>> DO YOU AGREE THAT IT --
>> GO AHEAD.
>> HAVEN'T WE ALREADY
CROSSED THAT BIJ IN STATE v.
STEELE AS FAR AS --
>> YES,.
YES, I THINK SO.
>> ON THE ONE, ON THE FELONY
MURDER VERSUS, VERSUS
PREMEDITATED MURDER, YOU
AGREE THAT THE JURY SHOULD
BE ASKED TO RECORD THEIR
NUMBERS ON IT OR JUST EITHER
THEORY HAVE TO BE FOUND BY A
UNANIMOUS JURIS?
>> WELL, THE COURT HAS
ALREADY ACKNOWLEDGED THAT
COURT DOES NOT HAVE TO
UNANIMOUSLY AGREE ON THE
THEORY BUT I THINK AS JUDGE
EATON HAS ALREADY SAID, IT
DOES A JUDGE IN KNOWING
WHERE THE JURY STANDS AND
WHAT AGGRAVATING FACTORS ARE
APPROPRIATE TO PRESENT TO
THE JURY.
VERY QUICKLY, I'D LIKE TO
JUST SAY THAT I THINK IT'S
VERY IMPORTANT TO GIVE
DEFINITIONS OF THE
AGGRAVATING AND MITIGATING
CIRCUMSTANCES.
THE JURY NEEDS TO KNOW THIS
IS NOT JUST A LAUNDRY LIST,
BUT THE PRINCIPLES BEHIND
APPLYING THE ENUMERATE!!ING
AGGRAVATING FACTORS, AND I
DO ALSO ENDORSE THAT.
THE ONE INSTRUCTION THAT I
DID -- THE VERY FIRST
INSTRUCTION.
--
>> YOU ARE BEYOND, SO IF YOU
COULD VERY PRECISELY ADDRESS
THIS.
>> IN ONE A WHEN YOU ARE
EMPANEL AGNEW PENALTY PHASE
JURY, I DO NOT BELIEVE A
JURY NEEDS TO BE TOLD OR
SHOULD BE TOLD THAN AN
APPELLATE COURT HAS
CONFIRMED CONVICTION OR
REMANDED A SENTENCING FOR A
NEW TRIAL.
WE DON'T TELL JURIES WHEN A
JURY HAS BEEN CONVICTED FOR
A CASE THAT HAS BEEN
REMANDED FOR A NEW TRIAL.
WE SHOULDN'T TELL A JURY
THAT A CONVICTION HAS BEEN
CONFIRMED AND A DEFENDANT IS
PREVIOUSLY BEEN SENTENCED TO
DEATH.
THANK YOU.
>> THANK YOU.
MS. BRILL, YOU GOING TO GO
NEXT?
>> EXCUSE ME, ASSISTANT
STATE ATTORNEY FOR THE 11th
JUDICIAL CIRCUIT ALONG WITH
GENERAL COUNSEL FOR THE
FLORIDA PROSECUTING
ATTORNEYS' ASSOCIATION.
>> WOULD YOU PULL THE
MICROPHONE DOWN?
I THINK IT WOULD HELP US
HEARING.
>> BASICALLY, YOUR HONOR,
SINCE 1976 WE HAVE HAD THESE
STANDARD JURY INSTRUCTIONS,
AND THEY HAVE WORKED WELL
OVER THESE YEARS, EXCEPT FOR
WHEN THERE HAS BEEN
MEANINGFUL CHANGES THAT HAVE
BEEN REQUIRED THROUGH
DECISIONS BY THIS COURT, FOR
EXAMPLE, WHEN WE HAD TO
CHANGE OUR HEINOUS,
ATROCIOUS, AND CRUEL
INSTRUCTION OR CCP BECAUSE
THE LAW REQUIRED THAT.
>> SOME WOULD ARGUE THAT
THEY HAVEN'T WORKED WELL,
THAT THE JURORS ARE CONFUSED
ABOUT LOT OF THINGS.
>> BUT THEY ARE NOT,
FRANKLY.
YOU KNOW I READ THE AVA,
REPORT AND YOU HAVE TO GO
BEYOND ABA REPORT AND LOOK
AT THE STUDY THAT THEY
RELIED ON IS VERY
INTERESTING.
TO SAY THEY RELIED ON, THEY
INTERVIEWED JURORS WHO, WHO
SAT IN CASES NORTH OF TAMPA.
THEY LEFT OUT MORE THAN HALF
THE STATE OF FLORIDA.
HOW CAN YOU RELY ON A REPORT
THAT SAYS THE JURORS WERE
CONFUSED WHEN YOU DON'T EVEN
INCLUDE THE WHOLE STATE OF
FLORIDA.
IT'S ONLY ONE-THIRD OF THE
STATE.
IT WAS QUITE -- I FOUND IT
TO BE --
>> I'M NOT SURE THERE'S
GOING TO BE A GEOGRAPHICAL
DIFFERENCE IN THE AMOUNT OF
CONFUSION.
>> WELL, I THINK THERE IS,
YOUR HONOR, HAVING BEEN IN
MIAMI-DADE COUNTY, I CAN
TELL YOU JURORS IN
MIAMI-DADE COUNTY ARE NOT
THE SAME JURORS LIVING IN
PENSACOLA.
THEY HAVE DIFFERENT VALUES.
>> I AM LOOKING AT JUSTICE
BELL YOU MEANING THAT -- --
SAYING THE INSTRUCTIONS ARE
FINE FOR THE BRIGHT.
[LAUGHTER]
>> MY JURORS CAN UNDERSTAND
--
>> I THINK YOUR JURSERS CAN
UNDERSTAND JUST AS WELL BUT
I DON'T KNOW WHICH JURORS
THEY MIGHT HAVE LOOKED ON --
RELY ON THAT STUDY.
THAT WAS MY POINT.
IF YOU DON'T LOOK AT THE
WHOLE -- ALL OF FLORIDA, YOU
CANNOT SAY THIS IS
REPRESENTATIVE OF THE WHOLE
STATE OF FLORIDA.
>> NOW, THE SUPPLEMENTAL
REPORT BY THE COMMITTEE,
HAVE YOU HAD AN OPPORTUNITY
TO LOOK AT THAT?
>> YES, YES, SIR,.
>> AND, THEY ADOPTED MANY OF
THE PROSECUTORS' SUGGESTIONS
AS FAR AS CHANGES.
DO YOU HAVE A PROBLEM WITH
NOW WHAT THE COMMITTEE IS
RECOMMENDING?
>> YES, SIR, WE STILL DO.
YES, AND I HAVE BASICALLY
FIVE POINTS IF I CAN DO THEM
AS QUICKLY AS I CAN.
>> TRY GETTING FIVE POINTS
IN --
>> OBVIOUSLY WE HAVE THE --
ININSTRUCTION.
PERSONALLY, I THINK WE CALL
IT THE, THE JURY
PARTSTRUCTION.
ALL INTENTS AND PURPOSES.
AND I WANTED TO READ REALLY
QUICKLY FROM FRANKIE, WHICH
I THINK IS IMPORTANT THAT
THIS COURT IN THE OPINION
WHERE YOU HAD THE PROBLEM
WITH THE ISSUE, AND BY THE
WAY, THERE ISN'T A FRANKIE
PROBLEM.
SINCE FRANKIE CAME OUT IN
2002, I DON'T RECALL THIS
COURT REVERSING ANY CASES OR
EVEN COMMENTING ON THE FACT
THAT THE PROSECUTORS OR THE
COURTS HAVE MISITATE STATED
THE LAW.
I THINK WE HAVE LEARNED FROM
THEN THAT THIS IS NOT AN
ISSUE ANYMORE.
>> I DON'T THINK WE HAVE HAD
A CASE ANYMORE.
>> RIGHT.
I DON'T THINK THERE IS A
FRANKIE PROBLEM ANYMORE.
BUT JUST READING FROM
FRANKIE ANYMORE THIS COURT
STATED FROM STATE v. DIXON
AND SAID IT MUST BE
EMPHASIZED THAT THE
PROCEDURE TO BE FILED BY
TRIAL JUDGES AND JURIES IS
NOT A MERE COUNTING PROCESS
OF X NUMBER OF AGGRAVATING
CIRCUMSTANCES AND Y NUMBER
OF MITIGATING CIRCUMSTANCES.
BUT A RATHER A REASONABLE
JUDGMENT OF WHAT
CIRCUMSTANCES REQUIRE
IMPOSITION OF DEATH AND CAN
BE SATISFIED BY LIFE
IMPRISONMENT IN LIGHT OF THE
CIRCUMSTANCES.
IT'S INTERESTING IN FRANKIE
THE COURT HAS USED THE WORD
REQUIRE.
>> IT WASN'T USED IN THE
SENSE OF REQUIREMENT OF THE
STATUTE.
>> I'M SAYING THE POINT OF
THE MATTER IS -- IT'S NOT
PROPER TO TELL THE JURY IF
YOU GO THROUGH 15, 20 PAGES
OF JURY INSTRUCTIONS WHICH
BASICALLY THEN SAYS NEVER
MIND.
FORGET WE JUST TOLD YOU.
YOU CAN SORT OF DO WHAT YOU
WANT TO DO BECAUSE YOU CAN
DO THAT.
SAME THING IN A TRIAL.
EVEN THOUGH THE STATE MAY
PROVE THE CASE BEYOND A
REASONABLE DOUBT, WE DON'T
TELL THE JURY YOU HAVE AN
INHERENT RIGHT TO PARDTHEN
DEFENDANT AND FIND HIM NOT
GUILTY EVEN THOUGH THE STATE
HAS FOUND -- IN FACT, WE
TELL THEM IT'S IMPORTANT TO
FOLLOW THE LAW.
THE LAST INSTRUCTION WE GIVE
THE JURY IN THIS GUILT PHASE
I THINK IT SHOULD ALSO APPLY
IN THE PENALTY PHASE IS IT'S
IMPORTANT TO FOLLOW THE LAW.
OVER 200 YEARS, WE FOLLOWED
THE LAW.
AND THAT'S WHAT THEY SHOULD
BE TOLD.
NOT TO WHAT YOU WANT BECAUSE
IT INJECTS ARBITRARINESS
INTO IT.
THAT'S THAT ISSUE.
THE SECOND ISSUE IS THE
VERDICT FORMS.
THAT'S A BIG PROBLEM BECAUSE
I THINK YOU HAVE TO LOOK AT
WHAT IS YOU'RE TELLING THE
JUROR.
FIRST OFF, JURORS, WE ALL
AGREE YOU DON'T HAVE TO BE
UNANIMOUS FOR WHICH THEORY
SO WHAT ARE YOU GO TO HAVE A
CASE WHERE YOU HAVE 12
JURRERS AND LET'S ASSUME
NINE JURORS SAY I THINK YOU
PROVED PREMEDITATED BUT 12
OF THEM -- YOU ALSO PROVED
FELONY SO WHAT ARE THEY
GOING TO PUT ON THERE.
THEY STILL HAVE FIRST-DEGREE
MURDER OR 6-6, 4-8, OR 12
AND 12 FOR BOTH THEORIES.
IT'S NOT GOING TO HELP THE
JUDGE BECAUSE WE REALLY
DON'T KNOW, AND FURTHERMORE,
THE PROBLEM IS, IS THE DEATH
PENALTY.
IF THE FELONY MURDER, 98% OF
THE TIME, THEY HAVE BEEN
CHARGED WITH THAT FELONY,
AND IF THEY HAVE BEEN FOUND
GUILTY OF THE FELONY, YOU
KNOW THERE IS FELONY MURDER.
YOU KNOW YOU CAN THEN HAVE
THAT AGGRAVATING
CIRCUMSTANCE BECAUSE, YOUR
HONOR, YOUR COURTS IN A LOT
OF CASES HAVE NO PROBLEM
WITH THE RING BECAUSE THEY
FOUND THE FELONY.
SO THEY ARE GOING TO BE
FINDING THAT FELONY ANYWAY
DURING THE COURSE OF -- YOU
DON'T NEED JURY INSTRUCTIONS
FOR FELONY MURDER.
THERE WILL BE SOMETIMES WHEN
THEY -- WHERE THEY WON'T BE
INSTRUCTED BUT MOST OF THE
TIME THEY HAVE THE
INSTRUCTION ON THE FELONY,
AND IF THERE IS NO FELONY
MURDER, THEY HAVE BEEN FOUND
GUILTY OF PREMEDITATED
MURDER SO THEN THERE IS THE
QUESTION OF IS THERE ENOUGH
FOR CCP WHICH YOU ARE NOT
GOING TO FIND FROM THE GUILT
PHASE ANYWAY.
NOT NECESSARILY.
PREMEDITATICIDE NOT GOING TO
TELL YOU THAT ANYWAY SO
THERE IS NO PURPOSE FOR THAT
PARTICULAR VERDICT FORM.
IT IS ONLY GOING TO REALLY
CONFUSE.
TELL THEM TO WRITE NUMBERS
ON THIS.
THEY ARE GOING TO BE VERY
CONFUSED.
I THINK THE FTA BELIEVES
THERE SHOULD BE A STANDARD
JURY INSTRUCTION FOR VICTIM
IMPACT.
ONE THING I HAVE FOUND IN
DOING A LOT OF TRIALS IN
MIAMI-DADE COUNTY I WILL
HAVE DIFFERENT JUDGES GIVE
DIFFERENT INSTRUCTIONS.
BECAUSE THERE IS NO
STANDARD.
I THINK THERE NEEDS TO BE A
STANDARD JURY INSTRUCTION ON
VICTIM IMPACT.
>> WHAT IS IT GOING TO SAY.
>> IF WE SUGGEST WHAT WE
TOOK FROM THIS COURT IN
FURENEY WLUV THIS COURT
WANTS TO DO, IT SHOULD BE
ONE THIS COURT IMPROVES.
>> VICTIM IMPACT IS NOT A
AGGRAVATOR IN CONSIDERING
WHETHER TO RECOMMEND DEATH.
IT IS NOT A MITIGATOR,
OBVIOUSLY, SO WHAT ARE YOU
GOING TO INSTRUCT THEM ABOUT
EXCEPT TO DISREGARD IT.
>> --
[INAUDIBLE]
WHAT HAS BEEN PROPER ABOUT
ONE THE STEERING COMMITTEE
HAS IS THAT THEY ADOPTED THE
FACDL'S POSITION WHICH SAYS
YOU CAN -- YOU'VE HEARD
EVIDENCE OF THE, FROM FAMILY
MEMBERS, I'M SORRY, FAMILY
MEMBERS, USE THE WORD
COLLEAGUES INSTEAD OF
COMMUNITY.
AND COLLEAGUES IS WRONG.
THAT'S NOT WHAT THE STATUTE
SAYS.
IT SAYS COMMUNITY AND 230U
USE COLLEAGUES AND NOT
COMMUNITY YOU CAN BE LEAVING
OUT A WHOLE BUNCH OF PEOPLE
--
>> STEERING COMMITTEES AGREE
IN THEIR AMENDMENT TO GO
BACK TO COMMUNITY?
>> NO, NO THEY DID NOT.
IT STILL SAYS COLLEAGUES IF
THEY DID I WOULDN'T BE
BRINGING IT UP AND I THINK
IT NEEDS TO BE COMMUNITY
BECAUSE THAT IS THE --
THAT'S THE STANDARD AND
THAT'S WHAT THE STATUTE
SAYS.
>> IF YOU COULD CAPTURE IN A
COUPLE OF MINUTES.
YOU ARE WELL OVER YOUR TIME.
>> TWO MINUTES?
>> COMPLETION, PLEASE.
VERY CONCISELY.
>> VERY QUICKLY -I THINK THE
DEFINITION OF AGGRAVATING
AND MITIGATING IS NOT
NECESSARILY, ESPECIALLY THE
AGGRAVATING ONE IS LEGALLY
WRONG BECAUSE IT LEAVES OUT
THE FACT THAT ONE AGGRAVATOR
WHICH THE VIOLENT PRIOR
FELONY HAS TO DO WITH THE
CHARACTER OF THE DEFENDANT.
AND DOESN'T MENTION THAT.
THAT'S THAT IS A AGGRAVATOR
SO THE WAY IT IS WORDSER
LEGALLY INCORRECT.
-- WORDER IS -- WORDED IS
LEGALLY INCORRECT.
WE REQUEST A CHANGE IN
REBUTTAL INSTRUCTION IN
PRIOR SIGNIFICANT -- NO LACK
OF PRIOR SIGNIFICANT HISTORY.
IN THE COMMENT BECAUSE IT
SHOULD SAY INSTEAD OF
CONVICTION, COMMISSION.
AND THE MERGING INSTRUCTIONS
HAS TO BE CHANGED IN THE
ORDER THE STEERING COMMITTEE
HAD IT.
>> THANK YOU.
>> THANK YOU VERY MUCH,
MS. BRILL.
>> MS. SNURKOWSKI?
SNYE MAY IT PLEASE THE COURT
I'M CAROLYN SNURKOWSKI FROM
THE ATTORNEY GENERAL'S
OFFICE AND I STAND HERE TO
REPORT THAT WE AGREE WITH
THE STATE ATTORNEY'S
PROPOSALS THAT HAVE BEEN
PRESENTED.
WE AALSO AGREE WITH THE
STEERING COMMITTEE'S
ADOPTION OF THOSE PORTIONS
OF IT AND WE STILL THERE ARE
YOU SHOULD ISSUES THAT NEED
TO BE RESOLVED.
WE THINK IT'S CLEAR FROM
WHAT YOU HEARD THIS MORNING
THAT A VERY GREAT NUMBER OF
INDIVIDUALS, VERY LIMITED
INDIVIDUALS HAVE LOOKED AT
THESE INSTRUCTIONS AND
DETERMINED THAT THERE ARE
SOME DIFFICULTIES WITH
REGARD TO THE -- WHAT THIS
COURT HAS SIGNALED TO THE IS
THAT THERE ARE STILL SOME
QUESTIONS BROUGHT TO THE
COURT CONCERNS ABOUT THEM.
AND I THINK AT THIS POINT IN
TIME, I THINK MS. BRILL'S
OBSERVATION IS KREKD --
CORRECT THAT WE HAVE HAD A
LONG PERIOD OF TIME WHEN
STANDARDS AND INSTRUCTIONS
HAVE OPERATED VERY
SUCCESSFULLY.
WHETHER IT'S, TO THE LIKING
OF EVERYONE, OBVIOUSLY IT'S
NOTCH WE HAVE HAD SOME
DISSENSION AND OBVIOUSLY WE
HAVE HAD OCCASIONS WHERE WE
HAVE HAD TO MAKE
MODIFICATIONS TO THE JURY
INSTRUCTIONS BUT I DON'T
KNOW NAT WE ARE HERE TO DO A
WHOLESALE REVISION OF
SOMETHING THAT HAS BEEN
OPERATIONING AND IS
UNDERSTOOD BY MOST OF THE
COURTS.
I THINK WHAT WE HAVE ALSO
HEARD IS THAT WE HAVE
INDIVIDUAL JUDGES ALONG THE
WAY AND PROSECUTORS AND
DEFENSE LAWYERS ASKING FOR
MODIFICATIONSES OF THE JURY
INSTRUCTIONS.
TO THEIR PARTICULAR REGIONAL
CONCERNS.
AND THAT'S HAPPENING WHICH
MEANS THAT WE DON'T HAVE
UNIFORM INSTRUCTIONS
THROUGHOUT THE STATE, AND I
THINK THAT'S PROBABLY
SOMETHING WE ALL OUGHT TO
GIVE PAUSE TO AND DETERMINE
WHETHER IN FACT THAT IS
SOMETHING WE WANT TO
CONTINUE ALLOWING TO HAPPEN.
MAYBE WE OUGHT TO BE MAKING
SOME OBSERVATIONS WITH
REGARD TO THE FACT THAT
PEOPLE ARE DIVERTING FROM
THE STANDARD JURY
INSTRUCTIONS TO THE EXTENT
THAT THEY NOW ARE SOME
DIFFERENT AREA WHERES WE
HAVE CHANGES IN THOSE
INSTRUCTIONS.
>> COULD YOU JUSTDRIES THE
ISSUE OF -- JUST ADDRESS THE
ISSUE OF WHO'S ON THE BURDEN
ABOUT SUFFICIENT
MITIGATISHIN' CIRCUMSTANCES
EXIST THAT OUTWEIGH THE
MITIGATING CIRCUMSTANCES.
I'M A JUROR.
I FIND THE AGGRAVATING
CIRCUMSTANCES, TWO
AGGRAVATING CIRCUMSTANCES
WERE PROVEN BEYOND A
REASONABLE DOUBT AND THEN I
FIND THE MITIGATING
CIRCUMSTANCES, YOU KNOW,
HAVE BEEN PROVEN BY A
PREPONDERANCE OF THE
EVIDENCE.
ALL RIGHT, NOW I AM GOING TO
WEIGH THE AGGRAVATING
AGAINST THE MITIGATING.
HOW DO I, IN TERMS OF
FIGURING OUT WHO HAS SHOWN
THAT THESE MITIGATING
CIRCUMSTANCES OUTWEIGH THE
AGGRAVATING OR THE
AGGRAVATING OUTWEIGH THE
MITIGATED?
IT SEEMS LIKE A PRETTY
IMPORTANT POINT, AND EITHER
WE NEED TO SAY IF IT IS THE,
WHAT IS IT IN TERMS OF THE
LAW, AND WHY DO THESE JURY
INSTRUCTIONS ADDRESS IT?
>> WELL, CERTAINLY I THINK
WE GIVE THE INSTRUCTIONS TO
THE JURY THAT THEY ARE TO
UNDERSTAND AND FOLLOW THAT
THE STATE HAS A BURDEN OF
COMING FORTH AND PROVING THE
AGGRAVATION BEYOND A
REASONABLE DOUBT SO THEY
UNDERSTAND THE BURDEN WITH
REGARD TO THAT.
>> THAT'S EASY.
>> AND THEY PRESENT -- AND
THEY ARE ALSO TOLD THE
DEFENDANT REALLY HAS NO
BURDEN BUT PRODUCTION IN
ESSENCE WITH REGARD TO
MITIGATION.
ANYTHING CAN BE CONSIDERED.
SO I THINK THEY HAVE THAT.
>> WELL, THEY HAVE TO SHOW
IT BY A PREPONDERANCE OF THE
EVIDENCE, AND THAT'S STATED.
>> PARDON ME?
>> IT'S STATED IN THE
INSTRUCTIONS.
>> YEAH, EXACTLY.
>> NOW WE GET TO THE
CRITICAL ISSUE, WHICH IS THE
WEIGHING PROCESS WHICH
JUDGES ALL OVER THE STATE
AND WHY WE HAVE DEATH
PENALTY COURSES AND WHY WE
REVIEW SENTENCING ORDERS AND
WHY WE HAVE CASE AFTER CASE
IS CRITICAL ISSUE OF
WEIGHING, WHICH WE KNOW IS
NOT A QUANTITATIVE BUT IT'S
QUALITATIVE WEIGHING.
WHEN THEY'RE WEIGHING IT,
THEY SAY, WHAT HAS THE STATE
SHOWN THIS OR HAS THE
DEFENDANT SHOWN THAT?
WHAT DO WE EXPECT THE JURORS
TO DO?
I THINK WE EXPECT THE
JURJURORS TO FOLLOW THE LAW.
I THINK THEY ARE INFORMED
THE AGGRAVATION HAS BEEN
PROVEN.
YOU HAVE MITIGATION THERE.
>> BUT WHO HAS TO PROVE --
DOES THE STATE HAVE TO PROVE
THAT THE AGGRAVATION -- THAT
ONCE THE MITIGATION HAS BEEN
ESTABLISHED.
IF NOTHING WAS PRESENTED,
WELL, THEN IT'S PROBABLY,
YOU KNOW, NO MITIGATION.
BUT MITIGATION HAS BEEN
PRESENTED.
NOW, NOW WHAT HAPPENS?
>> YOU KNOW, I THINK WE ARE
TALKING ABOUT A SLIPPERY
SLOPE OF WHETHER WE HAVE TO
HAVE DEFINITIONS YOU HAVE
HEARD TODAY ABOUT WHETHER
THE DEFINITIONS OF
MITIGATION.
I THINK IN THE SENSE OF
TALKING ABOUT THAT, YOU ARE
PUTTING INTO FOCUS WHAT
THEIR ROLES --
>> BUT WE CAN'T JUST LOOK AT
WHAT THE STATUTE SAYS
BECAUSE THE STATUTE DOESN'T
EXPLAIN AGGRAVATING
CIRCUMSTANCES HAVE TO BE
PROVEN BEYOND A REASONABLE
DOUBT OR MITT GALETS -- MITT
DPATING CIRCUMSTANCES HAVE
TO BE MOVE -- MITIGATING
CIRCUMSTANCES HAVE BEEN
PROUFBEN BY A MITIGATING --
OUTWEIGH THE AGGRAVATING
DOESN'T BY STAYING IT
DOESN'T TELL THE JURY HOW
THEY SHOULD WEIGH IT.
BUT AREN'T YOU -- IN ALL DUE
RESPECT IT SOUNDS LIKE YOU
ARE TELLING THEM THAT THE
STATE HAS TO PROVE THESE,
THEY HAVE TO PROVE AN
AGGRAVATING FACTOR BEYOND A
REASONABLE DOUBT.
THE DEFENSE CAN PROVE OR
PRESENTS EVIDENCE WITH
REGARD TO MITIGATION.
YOU MAY CONSIDER IT
BASICALLY WHICH IS WHAT
PREPONDERANCE.
AND IT SEEMS TO ME IF WE ARE
DANCING AROUND HERE ON THIS
ISSUE AND TRYING TO FIND
WHAT THIS IS, DON'T WE FIND
OF -- KIND OF FALL BACK INTO
THE PROBLEMS THAT HAVE
OCCURRED IN A NUMBER OF
CASES WHERE THE COURT HAS
CHASTISED THE PROSECUTOR,
FOR EXAMPLE, FOR SUGGESTING
THAT THE MITIGATION WAS NOT
VALID OR IT WASN'T -- IT WAS
IMPROPERLY PRESENTED OR IT
DOESN'T -- I THINK YOU ARE
KIND OF LOOKING AT THIS
WHOLE BIG PICTURE OF WHAT
EXACTLY YOURER ALLOWING THE
STATE TO DO.
>> I DON'T THINK YOU ARE
GIVING AN ANSWER TO MY
QUESTION.
IS THERE MITIGATION OF NO
BIRD SNN I AM JOUST JUST
GOING TO ROLL THE DICE AND
FIGURE OUT IN THIS CASE, YOU
KNOW, WHETHER MITIGATION
OUTWEIGHATHIZE AGGREGATION?
IT'S NOBODY'S BIRD SNN.
>> THE JURY IS TOLD THEY
HAVE TO OUTWEIGH THE
MITIGATION AND AGGRAVATION
AND WHEN THEY COME AND OUT
DETERMINE THERE IS
AGGRAVATION AND MITIGATION
DOES THE MITIGATION OUTWEIGH
THE AGGRAVATION AND THAT IS
WHAT THEY ARE TOLD AND I
THINK, THAT -IT'S NOT LIKE
MAGIC WORDS LIKE YOU HAVE TO
GIVE THAT MUCH WEIGHT.
I DON'T THINK WE WANT TO DO
THAT.
>> SO YOUR ANSWER IS
BASICALLY SAYING THERE IS NO
BURDEN OF PROOF.
>> WELL, BASICALLY -- I
DON'T KNOW IF --
>> WELL I HATE THE WORD
BURDEN.
>> WELL, THAT'S THE QUESTION
IS IS THERE ONE AND I THINK
YOU ARE SAYING NO.
>> NO, NO THERE'S NOT.
IUM I APOLOGIZE IF I WAS
BEING OBTUSE.
I THINK WE ARE EXPECTING THE
BURDEN.
PRODUCE AND LET THEM DECIDE.
>> PROVES HIS DEFENSE HE
GOES FORWARD AND PRESENTS
WHAT HE HAS TO PRESENT.
WE DON'T TELL THE JURY NOW
YOU HAVE TO SAY WHAT WE TELL
THEM IS THE STATE HAS PROVEN
THIS CASE BEYOND A
REASONABLE DOUBT WITH REGARD
TO THE CONVICTION.
WE DON'T --
>> MOST RESPECTFULLY, IF WE
HAVE BURDENS, WHETHER IT'S
INTOXICATION OR SELF-DEFENSE,
WE, OF COURSE, TELL THE JURY
IF SOMETHING, IF THE BURDEN
HAS BEEN SHIFTED OR WE
EXPLAIN WHOSE BURDEN IS IT.
>> AND I ABSOLUTELY AGREE
WITH YOU BUT I AM TALKING
ABOUT THE DIFFERENCE BETWEEN
THIS WORD BURDEN YOU ARE
USING.
IT IS WITHIN YOUR CONFINES
-- THE BURDEN HAS BEEN SET
TO THE ELEMENTS AND DEGREE
OF PROVE AND IT IS FOR THE
JURY TO DECIDE WHAT IS THE
APPROPRIATE FINDING.
>> THANK YOU VERY MUCH.
WITH OUR HELP, YOU HAVE
EXHAUSTED YOUR TIME JUDGE
EATON'S.
>> FIRST, AS FAR AS
PARAGRAPH ONE A IS CONCERNED
THAS TO DO WITH THE FACT
THAT THE CASE HAS BEEN SENT
BACK.
THAT'S THE STANDARD
ININSTRUCTION.
AND THE STEERING COMMITTEE
DID NOT RECOMMEND ANY
CHANGES ON THAT, AND I DON'T
THINK ANYBODY DID.
BUT THERE IT IS.
SECONDLY, JUSTICE BELL, OR
JUSTICE CONTARA, I'M SORRY,
THE RECOMMENDATION THAT WE
HAVE HERE DOES CHANGE THE
RARE CIRCUMSTANCES
INSTRUCTION.
YOU KNOW, THAT INSTRUCTION
WAS DEVISED BY SUSAN SHARE
YEARS AGO.
IT GOT CORPORATED INTO
THINGS BUT THE PROSECUTION'S
ININSTRUCTION SUGGESTED THE
LANGUAGE OUGHT TO BE CHANGED
ALTHOUGH THE RECOMMENDATION
OF THE JURY TO THE PENALTY
IS ADVISORY IN NATURE AND IS
NOT BINDING THE JURY
RECOMMENDATION MUST BE GIVEN
GREAT WEIGHT AND DEFERENCE
IN THE COURT IN DETERMINING
WHICH PUNISHMENT TO IMPOSE.
>> HOW DOES THAT CHANGE THE
CURRENT INSTRUCTION.
>> I DON'T THINK IT REALLY
DOES.
IT JUST MAKES THEM HAPPY.
>> THAT'S THE POINT.
ISN'T IT -- DON'T WE KNOW
THAT JURIES SOMETIMES
RECOMMEND DEATH BECAUSE THEY
THINK WELL, IT'S ONLY A
RECOMMENDATION.
IT'S REALLY THE JUDGE IS
GOING TO IMPOSE A SENTENCE
AND THEREFORE, THEREFORE, WE
WIPE OUR HANDS.
THIS IS JUST A
RECOMMENDATION AND KIND OF
MORE FREELY RECOMMEND DEATH
BECAUSE THEY KNOW THAT IS
NOT THE SENTENCE.
IT'S THE JUDGE THAT'S GOING
TO IMPOSE SENTENCE.
WHAT THEY DON'T KNOW IS MORE
OR LESS THE JUDGE IS ALMOST
ALWAYS GOING TO ABIDE BY
THEIR RECOMMENDATION.
>> MY RECLECTION NOW IS THE
GREAT DEFERENCE INSTRUCTION
IS SOMETHING THAT THE
COLLEGE OF ADVANCED JUDICIAL
STUDIES INVENTED.
I DON'T THINK IT'S PART OF
THE STANDARD INSTRUCTION
NOW.
I MAYBE WRONG, BUT I DON'T
THINK IT IS.
>> JUDGE EATON, LET ME
DIRECT YOUR ATTENTION, IF
YOU WILL, CERTAINLY WE HAVE
NOTDRIESED IN THIS COURT --
NOT ADDRESSED IN THIS COURT
THE SENSE OF THE EARLIER
CASES WHAT THE LAWYERS CAN
TELL THE, THE JURORS ABOUT
THE MITIGATIONIGATION
AGGRAVATION BUT THERE IS NO
QUESTION IN READING VOIR
DIRE THAT THAT IS THE LEAST
UNDERSTOOD ASPECT WHEN
JURORS GO INTO A COURTROOM
IT'S A FIRN WORLD TO THEM.
THEY DON'T UNDERSTAND THAT'S
HOW THE DEATH PENALTY WORKS.
SO WHAT IS YOUR RESPONSE TO
THE QUESTION THAT JUSTICE
PARIENTE HAS PRESENTED AND
THAT IS THERE A BURDEN?
SHOULD THERE BE SOME KIND OF,
OF WORDING ON A BURDEN TO
SORT OF CLARIFY WHO'S
SUPPOSED TO DO WHAT AS THE
THING GOES FORWARD AND
SOMEHOW, SOME METHOD TO, TO
BE APPLIED TO WEIGHING AND
WHETHER ONE OUTWEIGHED ONE
OR THE OTHER BECAUSE IT
REALLY SEEMS TO ME IF WE
COME BACK INTO A
CIRCUMSTANCE IT'S JUST WELL,
DO WHAT YOU WANT.
THAT DOESN'T REALLY -- THE
ENTIRE STATUTORY SCHEME INTO
SOME REAL PROBLEMS.
>> WELL, THAT'S THE WAY THE
STATUTE'S WRITTEN AND I --
LET ME EXPLAIN.
IF I HAD MY BROTHERS I DO A
LOT OF CHANGING ON THAT
STATUTE BECAUSE I HAVE DEALT
WITH IT FOR YEARS AND YEARS.
BUT, YOU HAVE TO DEAL WITH
WHAT YOU HAVE.
AND I THINK MS. SNURKOWSKI
IS CORRECT.
THAT'S THE WAY IT IS.
>> SO THERE IS A DANGER IN
PUTTING THESE OTHER
REQUIREMENTS INTO IT IS WHAT
YOU ARE SAYING BY WAY OF
JURY INSTRUCTIONS?
>> WELL, YES, IN THE FIRST
PLACE, I DON'T THINK ANY HAS
BEEN PROPOSED.
>> WELL, SOME OF THEM HAVE
BEEN TALKED ABOUT SO I THINK
IT'S AN ISSUE WE HAVE TO
ADDRESS.
DO YOU --
>> ANY CASE THAT'S DEALT
WITH THE BURDEN ISSUE?
>> NO.
NO.
>> OTHER OUT OF THIS COURT
AND THE U.S. SUPREME COURT.
>> IN FACT, NATIONWIDE, I
HAVE NEVER READ ANYTHING
ABOUT ANY PROBLEMS WITH IT.
>> OF COURSE, YOU NEED TO
UNDERSTAND NOW, MOST OF THE
STATES HAVE THE GEORGIA
SCHEME SO, YOU KNOW, WORRY
ABOUT THIS ISSUE.
THEY ALREADY ARE.
THE LAST THING I WOULD LIKE
TO MENTION IS I REALLY DON'T
HAVE ANY PROBLEM WITH
SUBSTITUTED THE WORD
COMMUNITY FOR COLLEAGUES.
IF THAT'S A PROBLEM IN THE
DEFINITION OF WHAT YOU'RE TO
DO WITH VICTIM IMPACT BUT I
THINK WE NEED TO DO
SOMETHING ABOUT VICTIM
IMPACT BECAUSE IT IS VERY
CONFUSING.
AND IT JUST INTERJECTS AN
ISSUE INTO THE TRIAL THAT
JURIES JUST DON'T KNOW WHAT
TO DO WITH.
>> DID Y'ALL CONSIDER THE,
WHAT WAS THE DISCUSSION
ABOUT THE PROSECUTORS'
CONCERN ABOUT THE DEFINITION
OF AGGRAVATOR?
>> I DIDN'T REALLY HEAR THAT
THERE WAS A CONCERN OTHER
THAN JUST A GENERAL
COMPLAINT THEY DON'T WANT TO
HAVE A DEFINITION.
BUT MY EXPERIENCE WITH
JURIES IS THEY DON'T
UNDERSTAND WHAT THESE THINGS
ARE.
AND IF YOU DON'T THEL THEM
WHAT THEY ARE YOU ARE ASKING
ONCE AGAIN TO DO ARBITRARY
AND THIS IS A PROBLEM.
SPAENG ESPECIALLY WHEN WE
DON'T KNOW WHAT THEY HAVE
DONE BECAUSE ALL WE GET BACK
IS A, IS A RECOMMENDATION
SAYING BY A NUMBER OF BLANK
TO BLANK, WE RECOMMEND THE
FOLLOWING.
BUT WE DON'T KNOW WHAT
AGVUIVATING CIRCUMSTANCES
THEY FOUND.
>> PRESENTLY, THE JURY IS
INSTRUCTED THAT THEY ARE
LIMITED TO CONSIDER AS
AGGRAVATING CIRCUMSTANCES
THE STATUTORY SETUP.
>> THEY ARE NOT TOLD WHAT TO
DO WITH VICTIM IMPACT.
>> I JUST WANTED TO SAY THAT
WE HAVE HAD A LOT OF
QUESTIONS.
THERE HAVE BEEN A LOT OF
REPORTS.
I KNOW -- THE COURT KNOWS
HOW HARD YOU HAVE WORKED IN
THE COMMITTEE TO TRY TO
BRING SOME FURTHER CLARITY
IN THIS VERY DIFFICULT AREA.
>> WELL, IT MAY NOT BE CLEAR
YET BUT AT LEAST WE HAVE GOT
SOMETHING BEFORE YOU THAT
YOU CAN PUT YOUR TEETH INTO.
>> THANK YOU.
>> THANK YOU.
>> WE THANK YOU FOR YOUR
TIME THAT YOU HAVE EEXPENDED
ON THIS AND ALL OF YOU FOR
PARTICIPATING THIS MORNING
AND ATTEMPTING TO MAKE IT
BETTER FOR TOMORROW SO THANK
YOU VERY MUCH.