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VIII.  DEATH PENALTY CONSIDERATIONS
PRESENTED BY:
JUDGE MARK A. SPEISER

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I GRAND JURY
•AN INVESTIGATIVE AND ACCUSATORY PANEL SUPERVISED BY CIRCUIT COURT
•ELIGIBLE CITIZENS OF THE JUDICIAL CIRCUIT ARE RANDOMLY SUMMONED AND SELECTED
•GRAND JURORS MUST BE AT LEAST 18 YEARS OF AGE AND PANEL CONSISTS OF NO FEWER THAN 15 NOR MORE THAN
21 PERSONS
•TERM OF DUTY IS 6 MONTHS AND MAY BE EXTENDED UP TO 90 DAYS

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•PAY IS $35 PER DAY
•EVERY SESSION IS RECORDED BY A COURT REPORTER
•DEFENSE ATTORNEY NOT ALLOWED TO BE PRESENT; THEREFORE DEFENSE SIDE OF CASE NEVER PRESENTED
•PETIT JURY IS TRIAL JURY, HEARS ALL ADMISSIBLE EVIDENCE PRESENTED BY PROSECUTOR AND DEFENSE, AND
RETURNS A VERDICT
•GRAND JURY RETURNS A CHARGING DOCUMENT KNOWN AS AN INDICTMENT WHICH IS REQUIRED TO INITIATE A
PROSECUTION OF A 1ST DEGREE MURDER CASE PUNISHABLE BY DEATH

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II. GUILT PHASE
•12 JURORS AND 4 ALTERNATES
•DEATH QUALIFYING THE JURY
–MISGIVINGS ABOUT RECOMMENDING DEATH PENALTY
•WITHERSPOON V. ILLINOIS
–391 U.S. 510 (1968)
•UNANIMOUS VERDICT

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III. PENALTY PHASE
•A.    UNNECESSARY IF DEFENDANT I5 OR YOUNGER WHEN MURDER COMMITTED
–CRUEL AND UNUSUAL PUNISHMENT
•8TH AMENDMENT
–CAN NOT EXECUTE DEFENDANT WHO IS MENTALLY RETARDED

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–CAN NOT EXECUTE DEFENDANT WHO AIDS AND ABETS THE COMMISSION OF A FELONY DURING WHICH A PERSON(S)
OTHER THAN THE DEFENDANT MURDERS THE VICTIM
–UNNECESSARY IF NO AGGRAVATING FACTORS PRESENT
–STATE NOT SEEKING DEATH PENALTY
–

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•B. DEATH PENALTY ONLY APPLICABLE IF MURDER
–PREMEDITATED
•THIS EXCLUDES SECOND DEGREE MURDER AND MANSLAUGHTER
–FELONY-MURDER
•AN UNINTENTIONAL YET REASONABLY FORSEEABLE KILLING OCCURRING DURING COMMISSION OR ATTEMPT TO
COMMIT A SERIOUS OR INHERENTLY DANGEROUS FELONY SUCH AS, ROBBERY, RAPE, ARSON, KIDNAPPING OR
CARJACKING
•C. JURY DOES NOT ORDER DEATH SENTENCE; ONLY MAKES NON-BINDING RECOMMENDATION TO COURT

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•D. JURY RECOMMENDATION OF LIFE WITHOUT PAROLE OR DEATH PENALTY IS BY A MAJORITY VOTE
–IF JURY VOTE IS 6-6 TIE, RECOMMENDATION IS DEEMED LIFE
–

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•E. STATE PRESENTS EVIDENCE OF AGGRAVATING FACTORS IN SUPPORT OF DEATH PENALTY
•EACH FACTOR MUST BE PROVEN BEYOND A REASONABLE DOUBT:
–MURDER COMMITTED BY PERSON UNDER SENTENCE (INCLUDES JAIL, PRISON, PROBATION, PAROLE)
–DEFENDANT HAS A PRIOR CAPITAL FELONY, A FELONY INVOLVING THE USE OR THREAT TO USE VIOLENCE TO THE
PERSON, OR A CONVICTION FOR DISTRIBUTION OF A CONTROLLED SUBTANCE PUNISHABLE BY A SENTENCE OF AT
LEAST 1 YEAR IN PRISON

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–DEFENDANT CREATED GREAT RISK NOT A MERE PROBABILITY OF DEATH TO MANY PERSONS (4 OR MORE PERSONS
OTHER THAN THE VICTIM)
–DEFENDANT USED FIREARM OR DIRECTED ANOTHER TO DO SO
–OFFENSE INVOLVED DISTRIBUTION OF DRUGS TO PERSONS UNDER 18
–OFFENSE INVOLVED DISTRIBUTION OF DRUGS CONTAINING POTENTIALLY LETHAL COMPONENT
–VICTIM IS A LAW ENFORCEMENT OFFICER

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–VICTIM PARTICULARLY VULNERABLE DUE TO AGE OR DISABILITY
–MURDER COMMITTED FOR FINANCIAL GAIN
–MURDER COMMITTED IN AN ESPECIALLY  HEINOUS, CRUEL OR DEPRAVED MANNER IN THAT OFFENSE INVOLVED
TORTURE OR SERIOUS PHYSICAL ABUSE TO VICTIM

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•F.  VICTIM IMPACT EVIDENCE
–USED TO PROVE VICTIM’S UNIQUENESS AND THE RESULTANT LOSS TO THE COMMUNITY BY THE VICTIM’S DEATH
•G. DEFENSE PRESENTS  MITIGATING FACTORS IN SUPPORT OF LIFE SENTENCE
•HERE THE FOCUS IS ON THE DEFENDANT’S CHARACTER OR LIFE HISTORY
–DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY

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–MURDER COMMITTED WHILE DEFENDANT UNDER INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTRESS
–DEFENDANT WAS AN ACCOMPLICE AND HIS PARTICIPATION WAS RELATIVELY MINOR
–DEFENDANT ACTED UNDER THE SUBSTANTIAL DOMINATION OF ANOTHER PERSON  OR UNDER EXTREME DURESS

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•
–DEFENDANT’S CAPACITY TO APPRECIATE THE CRIMINALITY OF HIS CONDUCT WAS SUBSTANTIALITY IMPAIRED
–AGE OF DEFENDANT AT TIME OF MURDER
•EXTREMELY YOUNG (OVER15) OR ELDERLY

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–DEFENDANT COULD NOT HAVE REASONABLY FORSEEN HIS CONDUCT DURING MURDER WOULD CREATE A GREAT RISK OF
DEATH TO ONE OR MORE PERSONS
–ANY OTHER FACTORS IN DEFENDANT’S BACKGROUND MITIGATING AGAINST DEATH PENALTY .

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•H. CLOSING ARGUMENTS
–STATE ARGUES FIRST
–DEFENSE HAS LAST WORD
•I.  JURY INSTRUCTIONS
•J.  JURY DELIBERATIONS AND RESULTING NON-BINDING ADVISORY OPINION
•K. SENTENCE ALTERNATIVES
–FOLLOW JURY’S
– RECOMMENDATION
–JURY OVERRIDE
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•L. DEATH SENTENCE REQUIRES EXTENSIVE AND DETAILED SENTENCING ORDER
•
•M. APPEAL
–DIRECTLY TO FLORIDA SUPREME COURT

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•THE END