IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff,
vs.
CRIMINAL DIVISION
CASE NO.: F05-846
GRADY NELSON,
Defendant.
JUDGE: COLODNY
/
MOTION FOR TWO JURIES
COMES NOW, the Defendant, GRADY NELSON, by and through his undersigned
counsel and pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution, Article I, sections 2, 9, 16, 17, and 22 of the Florida Constitution, hereby
moves this Honorable Court to strike the death notice, and make death not a possible penalty,
and in support thereof, would state:
I. The Capital Jury Project & Foundational Case Law
The Capital Jury Project (AThe Project@) is a multidisciplinary study of how capital
jurors make their life or death sentencing decisions; it was conducted in fourteen states and
initiated in 1990 by university-based researchers with support from the National Science
Foundation. William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of
Early Findings, 70 IND. L. J. 1043 (1995). The findings of the Capital Jury Project are based on
extensive 3-4 hour interviews with people1 who served as jurors in capital trials. Id. These
interviews sought to examine Athe extent to which jurors= exercise of capital sentencing
discretion is still infected with, or now cured of, the arbitrariness which the United States
1
Interviews were completed with 1198 jurors from 353 capital trials in 14 states. A sampling of
20-30 capital trials were selected in each state, including Florida, and a target sample was drawn for
interviews in each case.
1
Supreme Court condemned in Furman v. Georgia2, and the extent to which the principal kinds of
post-Furman guided discretion statutes are curbing arbitrary decision-making - as the Court said
they would in Gregg v. Georgia 3 and its companion cases.@ Id. (some footnotes omitted, some
footnotes added).
After the Supreme Court found unconstitutional arbitrariness in death penalty statutes
nationwide and invalidated them in Furman v. Georgia, 408 U.S. 238 (1972), the Court approved
re-enacted statutes which included specific aggravating factors, a bifurcated proceeding, and
appellate review to the highest state courts. The Court specified:
When human life is at stake and when the jury must have
information prejudicial to the question of guilt but relevant to the
question of penalty in order to impose a rational sentence, a
bifurcated system is more likely to ensure elimination of the
constitutional deficiencies identified in Furman.
Gregg. v. Georgia, 428 U.S. 153, 190 (1976). Post-Furman capital statutes included bifurcation
which, along with statutory aggravating factors, intended to provide protection from the arbitrary
and capricious imposition of the penalty of death. Id., at 195. A[T]hese concerns are best met by
a system that provides for a bifurcated proceeding at which [the jury] is provided with
information relevant to the imposition of sentence and provided with standards to guide its use of
the information.@ Id.
These standards, including aggravating factors, were designed to Anarrow the class of
persons eligible for the death penalty,@ and to justify the imposition of a more severe sanction.
See Zant v. Stephens, 462 U.S. 862, 877 (1983); Lowenfield v. Phelps, 484 U.S. 231, 246
(1988). Aggravating factors, combined with mitigating factors, provide Aa meaningful basis for
distinguishing the few cases in which [the death penalty] is imposed from the many cases in
which it is not.@ Furman, 408 U.S. 238 at 313.
2
Furman v. Georgia 408 U.S. 238, 309-310 (1972) holding that jurors= unguided exercise of
sentencing discretion under existing statutes was unconstitutionally arbitrary and capricious.
3
Gregg v. Georgia, 428 U.S. 153 (1976) requiring new capital statutes and sentencing guidelines to
remedy the unconstitutional arbitrariness found under the prior capital sentencing schemes.
2
Subsequently, in Lockett v. Ohio, 438 U.S. 586 (1978) , after recognizing that the penalty
of death is qualitatively different from other penalties, the Supreme Court held Athat the Eighth
and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as
a mitigating factor, any aspect of a defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less than death.@ Lockett at
604-605 (emphasis in original). ATo meet constitutional requirements, a death penalty statute
must not preclude consideration of relevant mitigating factors.@ Id., 438 U.S. at 608. In fact,
Just as the state may not by statute preclude the sentencer from
considering any mitigating factor, neither may the sentencer refuse
to consider, as a matter of law, any relevant mitigating evidence. . .
.The sentencer . . . may determine the weight to be given relevant
mitigating evidence. But they may not give it no weight by
excluding such evidence from their consideration.
Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982).
As a consequence of requiring consideration of mitigating evidence, the Supreme Court
reversed a Florida defendant=s conviction as jury instructions at the time did not permit
consideration of non-statutory mitigation. Hitchcock v. Dugger, 481 U.S. 393 (1986). Applying
these standards specifically to Florida, to this jurisdictional court, the Court reiterated that, Ain
capital cases the sentencer may not refuse to consider or be precluded from considering any
relevant mitigating factor.@ Id., at 394. (Internal quotations and citations omitted.). Accord:
Green v. Georgia, 442 U.S. 95 (1979); Penry v. Lynaugh, 492 U.S. 302 (1989); Mills v.
Maryland, 486 U.S. 367 (1988).
In light of this controlling case law, The Project undertook its research guided by the
following objectives: A(1) to systematically describe jurors= exercise of capital sentencing
discretion; (2) to assess the extent of arbitrariness in jurors= exercise of capital discretion; and
(3) to evaluate the efficacy of the principal forms of capital statutes in controlling arbitrariness in
capital sentencing.@ Bowers, supra, at p. 1077. It is through research only that jurists can assess
3
the efficacy of the current constitutionally prescribed standards and procedures for capital jurors
and whether these standards and procedures are meeting the objectives set by the Court to protect
the constitutional rights of capital defendants.
As perhaps the most well respected and scholarly research of this type to date, The
Project is worthy of consideration in capital cases. Principal publications based upon The
Project draw upon statistical data and personal accounts of jurors. Over 30 articles based on The
Project=s data have been published to date. This Motion asserts that the findings of The Project
with respect to jury instructions and early deliberations requires the striking of the Death Notice
in this case in order to preserve defendant=s constitutional rights as required by foundational
case law. Specifically, research proves that jurors make early decisions as to penalty and fail to
properly include mitigation in their decision making matrix.
Such conduct is contrary to
constitutional standards and is impermissible.
II. JURORS DO NOT UNDERSTAND OR CORRECTLY APPLY SENTENCING
PHASE JURY INSTRUCTIONS REGARDING MITIGATION
The Project reveals that capital jurors lack understanding of mitigation:
Jurors do not understand the term Amitigation@ and thus it is often
dismissed. Unless the jurors believe that the evidence in
mitigation either proves that the killing was not deliberate or
furnishes an excuse
for the killing, such as insanity or duress, it does not provide
adequate reason to impose a life sentence. In the absence of an
understanding of how to take mitigation into account, jurors
naturally turn to the analogy provided for by the guilt trial, namely
defenses that serve as a justification or excuse.
Ursula Bentele and William J. Bowers, How Jurors Decide Death: Guilt is Overwhelming,
Aggravation Requires Death, and Mitigation is No Excuse, 66 BROOK. L. REV. 1011 (2001)
4
(emphasis added). As technical jargon within the legal system, the term Amitigation@ is foreign
to most jurors and a number of the jurors interviewed for The Project failed to accurately define
the word, and at times, confused it with aggravation. Id. Moreover, Ajuror comprehension of
sentencing instructions is limited, especially with regard to instructions dealing with mitigation .
. .[T]he defendant is typically disadvantaged by the misunderstandings.@ Frank and Applegate,
Assessing Juror Understanding of Capital Sentencing Instructions, 44 CRIME AND
DELINQUENCY 3 (1998). Another study demonstrated that Athe less the jurors understand the
mitigation instructions, the more likely they are to impose the death penalty.@ Richard Weiner,
The Role of Declarative Knowledge in Capital Murder Sentencing, 28 JOURNAL OF APPLIED
PSYCH., 2 (1998).
In Florida, the instructions on mitigation are minimal and uninformative. For example,
Florida Jury Instruction in Criminal Cases 7.11 instructs the jury that the evidence to be
presented is done so in order that they might determine, first, whether sufficient aggravating
factors exist that would justify the imposition of the death penalty, and second, whether there are
mitigating circumstances sufficient to outweigh the aggravating circumstances, if any. This
ordering and wording emphasizes aggravation and minimizes the role of mitigation.
The
instruction goes on to state, A[a]t the conclusion of the taking of the evidence and after argument
of counsel, you will be instructed on the factors in aggravation and mitigation that you may
consider.@ Id. Later, the jury is told that,
[s]hould you find sufficient aggravating circumstances do exist, it will then be
your duty to determine whether mitigating circumstances exist that outweigh the
aggravating circumstances. Among the mitigating circumstances you may
consider, if established by the evidence, are: . . . any of the following
circumstances that would mitigate against the imposition of the death penalty:4
a.
Any other aspect of the defendant=s character, record, or background.
4
It is significant that when the court instructs the jury to consider the mitigating circumstances, it instructs
with specificity only on statutory mitigation, and then turns to the general instructions to consider Aaspects of
defendants character, record, or background,@ and Aany other circumstances of the offense.@
5
b.
Any other circumstances of the offense.
Florida Jury Instructions in Criminal Cases, 7.11. This is insufficient to meet the standards set in
Lockett and its progeny. As for the burden of proof required for mitigation, the jury is instructed
that Aa mitigating circumstance need not be proved beyond a reasonable doubt. If you are
reasonably convinced that a mitigating circumstance exists, you may consider it as established.@
Id. Regarding the ultimate weighing of mitigating and aggravating circumstances, the jury is
instructed that, A[y]ou should weigh the aggravating circumstances against the mitigating
circumstances, and your advisory sentence must be based on these considerations.@ Id.
For the reasons stated above and set forth below, Defendant asserts Florida=s pattern jury
instructions fail to adequately explain mitigation to juries. Capital defendants, therefore, still risk
receiving arbitrary and capricious imposition of death. Accordingly, Defendant argues that the
Court should strike the death notice in this case, as the instructions fail to educate jurors about
mitigation and its application in the penalty phase. Defendant further and respectfully argues
that not only ought the Court strike the death notice in this case, but it must do so as the law
imposes upon the Court a duty to instruct juries on the law, and the current instructions fail to
ensure a proper application of the law to the facts of a capital case, and fail to ensure that a jury
carries out its constitutional duty to consider and give effect to mitigation.
III. The Requirement of Correct Jury Instructions
Under Florida law, a trial court judge has a duty to instruct the jury on the law. Rule
3.390(a), Florida Rules of Criminal Procedure, provides in pertinent part, AThe presiding judge
shall charge the jury only upon the law of the case at the conclusion of argument of counsel.@
Due process requires instructions as to what the state must prove in order to obtain a conviction.
See Screws v. United States, 325 U.S. 91, 107, 65 (1945). (AEven those guilty of the most
heinous offenses are entitled to a fair trial.@). It is fundamental error to fail to instruct the jury
correctly as to what the state must prove in order to obtain a conviction. State v. Delva, 575
6
So.2d 843 (Fla. 1991), Sochor v. State, 580 So.2d 595 (Fla. 1991).
In the present case, the instructions are insufficient to impart to the jury a basic
understanding of the role and import of mitigation. Empirical data has shown that Anearly onethird of actual jurors were under the mistaken impression that the law required a death sentence
if they found heinousness or dangerousness.@ Eisenburg, Garvey, and Wells, Jury Responsibility
in Capital Sentencing: An Empirical Study, 44 BUFF. L. REV. 339 (1996); accord, Bowers, The
Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 IND. L. J. 1043,
1091, n. 32 (1995). One Florida study of death penalty jurors found a significant number of
jurors believed that the death penalty was mandatory or presumed for first degree murder.
Geimer and Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida
Death Penalty Trials, 15 AM. J. CRIM. L. 1 (1989).
A significant number of jurors in death penalty cases believed that
the death penalty was mandatory or presumed for first degree
murder. In the death recommendation cases, over half of the jurors
believed that death was to be the punishment for first degree
murder, or at least that death was to be presumed appropriate
unless the defendant could persuade the jury otherwise5.
Id.
This data is consistent with other studies. AAstonishingly, more than half of the jurors
said that they personally felt death is the only appropriate punishment for...premeditated murder
and multiple murder.@
Bowers, Sandys, and Steiner, Foreclosed Impartiality in Capital
Sentencing: Jurors= Predispositions, Attitudes, and Decision Making, 83 CORNELL L. REV.
1476, 1504 (1998). AA substantial percentage of jurors believed the death penalty is the only
appropriate punishment for convicted murderers.@ Garvey, The Emotional Economy of Capital
Sentencing, 75 N.Y.L. SCH. L. REV. 26, 38 (2000).
5
AThere appears to be a presumption that
As an aside, this raises burden-shifting issues which are insufficiently addressed by the present
instructions.
7
clear unequivocal proof of guilt justifies the death penalty.@ Bowers, Sanday, and Steiner,
supra, 83 CORNELL L. REV. at 1497-98.
This Apresumption of death@ is based on data suggesting that Athe sentencing phase of
capital trial commences with a substantial bias in favor of death.@ Eisenbery, Garvey, and
Wells, supra, 44 BUFF. L. REV. 339. This inclination toward death Asuggests that a defendant
with a confused jury may receive the death sentence by default, without having a chance to
benefit from the legal standards designed to give him a chance for life.@ Eisenbery, Garvey, and
Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV 1, 38,
n.12 (1992). Amazingly, A[w]hen jurors report pre-deliberation indecision about either guilt or
sentence, the undecided jurors tend to vote for death.@ Id. at 13.
These findings demonstrate that the current instructions are woefully inadequate to
correctly instruct the jury as to the role and import of mitigation. This research shows that
without substantially modified and improved instruction, a task that the Florida Supreme Court
has not done, it is probable that defendant=s rights will be abrogated by the jurors= processes,
making the striking of the death notice in this case and making death not a possible penalty the
only viable remedy.
IV.
PREMATURE DECISION MAKING ABOUT PENALTY
As previously stated, armed with this presumption of death, jurors impermissibly reach a
decision regarding penalty before the sentencing stage of the trial begins. AInterviews with 916
capital jurors in eleven states reveal that many jurors reached a personal decision concerning
punishment before the sentencing stage of the trial, before hearing evidence or arguments
concerning the appropriate punishment, and before the judge=s instructions for making their
decision.@ Bowers, Sandeys, and Steiner, supra, 83 CORNELL LAW REV. at 1477. Almost
one half of the capital jurors in the eleven Capital Jury Project states thought they knew what the
8
punishment should be during the guilt phase of the trial, and forty percent (40%) of Florida
capital jurors took a stand on punishment before the penalty phase. Id., at 1488-89. That is,
jurors begin the decision making process about the penalty phase of proceedings before
instruction on mitigation or presentation of mitigation evidence contrary to a defendant=s
constitutional rights.
The defendant has a constitutional right to an individualized sentencing which requires
consideration of the character and record of the individual offender and the circumstances of the
particular offense.
Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
When jurors
prematurely form opinions as to penalty, as research proves they do, there is no such
consideration.
It is, therefore, imperative that the Court do all it can to ensure jurors
appropriately undertake this analysis, and undertake it at the appropriate phase of the
proceedings. Such education of the jury by the court must begin when the proceedings begin.
In Morgan v. Illinois, 504 U.S. 719 (1992), the Court considered the refusal of the trial
court to permit defense counsel to conduct meaningful voir dire on the question whether the
potential jurors would automatically impose the death penalty. After recognizing that general
inquiries about Abeing fair@ and Afollowing the law@ are insufficient to detect such views, the
Court held that jurors who are unalterably in favor of the death penalty Aby definition are ones
who cannot perform their duties in accordance with law, their protestations to the contrary
notwithstanding.@ Id., at 735.
[T]he belief that death should be imposed ipso facto upon conviction of a capital
offense reflects directly on that individual=s inability to follow the law. YAny
juror who would impose death regardless of the facts and circumstances of
conviction cannot follow the dictates of the law.
Such jurors obviously deem mitigating evidence to be irrelevant to their decision
to impose the death penalty: they not only refuse to give such evidence any
weight, but are also plainly saying that mitigating evidence is not worth their
consideration and they will not consider it.
9
Id. at 735-736. Thus, any court or jury member to whom mitigating factors are irrelevant
Ashould [disqualify himself or] be disqualified for cause, for that [person] has formed an opinion
concerning the merits of the case without basis in the evidence developed at trial.@ Id. at 739.
Moreover, in order to preserve a capital defendant=s constitutional rights, jury instructions and
voir dire should take into account jurors= predisposition to prematurely begin the decision
making process regarding penalty.
The fact that a large proportion of capital jurors, including Florida jurors, reach a decision
about the appropriate sentence before the beginning of the penalty phase, or before they have
evidence, arguments, and instructions on mitigation, renders the penalty phase proceeding
constitutionally infirm. Regardless of whether jurors= inability to withhold forming an opinion
comes from the death qualification process itself or jurors= personal views combined with the
gruesome nature of capital case evidence, the fact is that a substantial percentage of jurors
impermissibly Arefuse to give [mitigating] evidence any weight [and] are also plainly saying that
mitigating evidence is not worth their consideration and they will not consider it.@6 Id. at 735736. Morgan=s requirement that capital jurors give consideration and effect to mitigation goes
beyond the right of the defense to present mitigation evidence. Jurors who have already decided
the defendant=s penalty prior to the sentencing phase fail to consider mitigation evidence and
cannot, therefore, give effect to such evidence. Such failure violates the Eighth Amendment=s
prohibition against cruel and unusual punishment, as well as the Sixth Amendment right to an
impartial jury.
These violations are underscored by the results of research designed to determine the
level of certainty of the jurors= early stand on punishment. The Project=s findings show that
most jurors who reportedly took an early stand during the guilt stage of the trial state that they
6
This raises implications regarding jury selection and the single jury/bifurcated trial system to be addressed
in a subsequent motion. The focus of this Motion is the lack of proper instructions on mitigating circumstances, the
obvious need for better guidance to the jury about the role of mitigation, and the inability to get a fair and impartial
jury as to penalty.
10
were Aabsolutely convinced@ of their position at that procedurally premature point of the
proceedings. Bowers, Sandys, and Steiner, supra, 83 CORNELL LAW REV. 1476, A[M]ost
boldly affirmed that they were convinced of what the punishment should be without reservation,
even before hearing the evidence and arguments at the sentencing stage of the trial.@ Early prodeath stands were found to be one and a half times more common than early pro-life stands. Id.
at 1532.
The certainty of jurors= belief in the proper punishment at an early stage of the trial is
clearly at odds with having an open mind and following the court=s instructions not to form any
definite or fixed opinions about the case as required by Florida Standard Jury Instruction 2.1.
These early decision makers close their minds to mitigation, and potentially effect the decisional
process of their co-jurors at this early stage. The Project found that:
The most surprising and disturbing finding is the extent to which jurors discussed
the legally irrelevant and likely confounding matter of the defendant=s
punishment during their determination of guilt. Three to four of every ten jurors
indicated that what the defendant=s punishment could be, would be, or should be
was discussed during guilt deliberations.
Id. at 1519. Moreover, according to the research, jurors experience the temptation to talk about
punishment, even when they know and acknowledge that it is inappropriate to do so. Id. at 1528.
When the penalty is prematurely part of the guilt phase discussions,
Pro-death jurors often declare B sometimes in forceful, impassioned words
B that the law requires death or that the character of the crime or of the defendant
demands it. YThey argue that the jury was selected for its ability to impose death,
and they allay others reluctance to impose death by saying jurors must not feel
personally responsible for the defendant=s punishment, that judges are the ones
who actually impose the sentence, and that the death penalty is seldom carried
out.
Id., at 1529.
The implications are daunting. Y[P]remature decision making appears to violate
11
the precept of guided capital sentencing discretion that Gregg Y endorsed as the
remedy for the arbitrariness and caprice that Furman held unconstitutional.
Id. In addition, because a defendant may not present evidence until the second phase of a capital
trial, an early decision that death is the appropriate penalty violates the Supreme Court=s rulings
in Morgan v. Illinois, Lockett v. Ohio, Eddings v. Oklahoma, and Skipper v. South Carolina.
Given the extent and pervasiveness of jurors early decision making as to penalty, this
Court must come to the conclusion that our bifurcated system is ineffective in Achanneling the
discretion of the sentencer,@ Lowenfield v. Phelps, 484 U.S. 231, 246 (1988), or in
distinguishing the Amost aggravated and least mitigated of murders@ from the many cases in
which the death penalty is not imposed. Furman at 313. (White, J. concurring). If substantial
numbers of jurors do not consider mitigation, they cannot act, as required, Ain good faith to
consider the evidence of aggravating and mitigating circumstances as the instructions require.@
Morgan, 504 U.S. at 729.
V. CONCLUSION
For the preceding reasons, defendant asserts that since it is (1) probable that jurors in his
case will impermissibly fail to properly understand how mitigation applies to his case; (2)
probable that jurors will fail to properly analyze mitigation evidence in violation of his
constitutional rights; and (3) probable that jurors in his case will impermissibly come to
premature decisions about punishment in his case in violation of his constitutional rights, he
requests the Court enter an Order Striking the Death Notice and making death not a possible
penalty.
I HEREBY CERTIFY that a true and correct copy of the foregoing motion was
mailed to the Office of the State Attorney, 1350 N.W. 12th Avenue, Miami, Florida 33136
this ___ day of May, 2009.
12
Respectfully submitted,
Swartz & Lenamon
100 N. Biscayne Blvd., Suite 3070
Miami, Florida 33132
(305) 579-9090
By:
_______________________
Terence M. Lenamon
Florida Bar No.: 970476
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff,
vs.
CRIMINAL DIVISION
CASE NO.: F05-846
GRADY NELSON,
Defendant.
JUDGE: COLODNY
/
ORDER GRANTING MOTION FOR TWO JURIES
13
THIS CAUSE having come before this Court to be heard on Defendant’s MOTION FOR
TWO JURIES and the Court being advised of the premises, it is hereby:
ORDERED AND ADJUDGED that the MOTION FOR TWO JURIES is GRANTED,
and it is further ORDERED that two different juries be selected, with one jury being utilized for
the guilt phase of this cause and the other jury being utilized for the penalty phase of this cause.
DONE AND ORDERED in chambers in Dade County, Florida this ____, day of
______, 2009.
_____________________
Circuit Court Judge
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND
FOR DADE COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff,
vs.
CRIMINAL DIVISION
CASE NO.: F05-846
GRADY NELSON,
Defendant.
JUDGE: COLODNY
/
ORDER DENYING MOTION FOR TWO JURIES
14
THIS CAUSE having come before this Court to be heard on Defendant’s MOTION FOR
TWO JURIES and the Court being advised of the premises, it is hereby:
ORDERED AND ADJUDGED that the MOTION FOR TWO JURIES is DENIED.
DONE AND ORDERED in chambers in Dade County, Florida this ____, day of
______, 2009.
_____________________
Circuit Court Judge
15