Judge says Florida death-penalty law is unconstitutional

Judge Milton Hirsch

Judge Milton Hirsch

A Miami-Dade judge has ruled that Florida’s death penalty is unconstitutional because jurors are not required to agree unanimously on execution, a decision certain to spur more legal wrangling over Florida’s capital punishment system.

Circuit Judge Milton Hirsch on Monday became the first state judge to rule on the constitutionality of Florida’s revamped death-penalty sentencing law. Miami-Dade prosecutors immediately vowed to appeal.

He issued the ruling in the case of Karon Gaiter, 37, who is awaiting trial for first-degree murder for fatally shooting a man seated in a car in North Miami-Dade in April 2012.

Hirsch wrote that Florida’s recently enacted “super majority” system — 10 of 12 juror votes are needed to impose execution as punishment for murder — goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

“A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant,” Hirsch wrote. “And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors — every single one of them.”

Hirsch’s order comes as Florida’s controversial death-penalty law remains very much in flux.

In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state’s death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty.

In the Hurst case, the high court heard arguments about the unanimity question but ultimately did not rule on the issue.

Except for Alabama, Florida and Delaware, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence. The issue has long rankled critics of Florida’s death penalty.

Last week, the Florida Supreme Court heard oral arguments in the Hurst case, with opponents of the law arguing that all 390 Death Row inmates should get life sentences because they were sentenced under a flawed system.

After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida’s new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors.

“All of these changes inure to the benefit of the defendant,” Miami-Dade Assistant State Attorney Penny Brill, head of the office’s legal bureau, wrote in a motion in the Gaiter case earlier this year. “These requirements render Florida’s system constitutional under the United States Supreme Court’s precedents.”

But Hirsch, in his order, said the fixes don’t matter.

“Arithmetically the difference between twelve and ten is slight,” the judge wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

The state’s appeal could first go to Miami’s Third District Court of Appeals. The case before Hirsch will almost certainly wind up before the Florida Supreme Court, said Stephen Harper, a former public defender and co-director of the Florida Center for Capital Representation at Florida International University’s College of Law.

“I would say the broader issue is going to go back up to the U.S. Supreme Court,” Harper said. “It has never ruled one way or another whether a jury would have to be unanimous in a death-penalty sentencing.”

Hirsch, the former president of the Florida Association of Criminal Defense Lawyers and a law school professor, is well-known in South Florida’s criminal justice community. He authored a book on Florida criminal trial procedure.

He is also no stranger to challenging seeming norms in Florida’s criminal-justice system.

In 2011, Hirsch was the only Miami-Dade judge who agreed with a federal judge that Florida’s drug possession law was “draconian” because prosecutors don’t have to prove that the accused actually knew of the illicit nature of the narcotics they were carrying. The Third DCA and the Florida Supreme Court eventually held the drug statute was lawful.

In another high-profile case, Hirsch curtailed forensic evidence, not allowing a police fingerprint examiner to testify that he identified a conclusive “match” for a Miami man accused of two burglaries.

“We have become accustomed to, and accepting of, fingerprint testimony,” Hirsch wrote. “Once upon a time, our forebears were accustomed to, and accepting of, the notion that the world was flat. That did not make it so.”

An appeals court later overturned Hirsch.

Hirsch was elected to the circuit bench, unopposed, in May 2010. He issued his ruling in the Gaitor case three days after he retained his seat when no one filed to challenge him.

As for Gaitor, he is accused of murdering Lorenzo Robinson on April 2, 2012 on the 2100 block of Northwest 47th Terrace. Police said he opened fire as Robinson sat in a car with Gaitor’s ex-girlfriend.