The Judicial Overrride of Life or Death Recommendations in Capital Cases in Florida, by David A. Brener, Esq.

THE JUDICIAL OVERRIDE OF THE JURY’S LIFE OR DEATH RECOMMENDATIONS IN CAPITAL CASES IN FLORIDA, by David A. Brener, Esq.

In Florida, judicial overrides in capital cases have been part of our statutory scheme since 1972, when the trial judge became the actual sentencer in capital cases. Prior to that, the jury sentenced the defendant to either death or life imprisonment. An override occurs when a judge sentences a capital defendant to a sentence that is different than the one recommended by a majority of the jury. The override was initially intended as a way to protect a capital defendant from a jury recommendation based on juror emotion, and without the experienced perspective and dispassionate analysis that a judge has in comparing the capital case to other first degree murder cases. Judges were an extra level of protection for the capital client.

In practice, however, historically most judicial overrides, rather than protecting the defendant from an impassioned, wayward jury, were life to death overrides where the court sentenced the defendant to death notwithstanding a jury recommendation of life. Many have speculated that political considerations, re-election hopes, and the desire to appear tough on crime are responsible for the large number (at least 167) of life to death overrides in Florida. In Tedder v. State, 322 So.2d 908 (Fla. 1975), although the Florida Supreme Court approved of life to death overrides only in circumstances where clear and convincing evidence showed that no reasonable person could differ that death was the only appropriate penalty, the liberal use and supreme court affirmance of the override, even in cases where heavy majorities voted for life, undermined the strong language allegedly restricting its use.

Ring v. Arizona, 536 U.S. 584, (2002), cast doubt on the continued viability of life to death overrides, as the jury’s recommendation of life may well constitute a “verdict” to the effect that the aggravating circumstances were not proven beyond a reasonable doubt, or were “insufficient” to justify the imposition of the death penalty. See Florida Standard Jury Instruction 7.11. Thus, life to death overrides may well violate the defendant’s Sixth Amendment right to Trial by Jury as announced in Ring, and in any event, the law now appears to preclude such an override unless there is no mitigation in the record to support a life recommendation. See e.g., Ferry v. State, 507 So.2d 1373, 1376-77 (Fla. 1987); Boyett v. State, 688 So.2d 308, 310 (Fla. 1996).

On the other hand, death to life overrides are still cognizable in Florida. Since 1992, there have been 36 judicial sentences to life after a jury recommendation of death. The percentage of death to life overrides, as one might expect, decreases as the number of jurors voting for the death penalty increases, with the highest number of overrides (13) occurring when the vote was 7-5 in favor of the death penalty, and only two (2) cases where the vote was 12-0 in favor of the ultimate punishment. The reasons for the judges’ decisions to override the recommendations of the juries vary, and demonstrate how conscientious and, indeed judicious, are some members of our judiciary. While most death to life overrides result in no public criticism of the overriding judge, and no election challenge, most judges are nevertheless aware of the mob and pro-death mentality which accompanies high profile capital cases. To ignore those social and political considerations and do what the court thinks is right, is the epitome of what it means to be a judge, and is one very important reason for the independence of our third branch of government.

According to Professor Michael Radelet’s research, since 1992 sixteen (16) overrides were based, in part, on the defendant’s mental illness or retardation, nine (9) overrides were based on questions about intent or premeditation, thirty-five (35) where the mitigation outweighed the aggravation, eleven (11) involved consideration of the defendant’s lack of criminal record, and others included questions about who was the triggerman, or considered the defendant’s remorse, responsibility or cooperation. Several local judges issued death to life overrides in high profile capital cases, including the Honorable Thomas S. Reese (3), William Nelson (3), Isaac Anderson, and Edward J. Volz. The current judicial college death penalty lecturer, a proponent of capital punishment, the Honorable O.H. Eaton, has overridden a jury recommendation of death to life on more than one occasion.

Given the existence of the death penalty in Florida, perhaps our tripartite system of capital punishment – a separate penalty phase, a jury recommendation, and a sentence issued by a judge - can indeed afford an added level of protection to capital defendants, at least when the Court gives meaning to the mitigating evidence in the case, is precluded from overriding a life recommendation, and reserves the ultimate penalty for the truly worst of the worst.

David A. Brener is a Fort Myers criminal defense lawyer who concentrates on homicide and serious felony cases, and is the Chairperson of the Criminal Law Practice Section of the Lee County Bar Association.