Now on trial in Florida -- 390 inmates on death row

Justices on the Florida Supreme Court on Thursday peppered attorneys with questions about what to do with Timothy Lee Hurst, a death row inmate who murdered his boss at a Pensacola fried chicken restaurant in 1998.

It’s the justices’ job to deal with Florida’s broken death penalty system.

In January, after studying what happened at Hurst’s trial, the U.S. Supreme Court declared the state’s death penalty statute unconstitutional. It violated an inmate’s right to a trial by jury, the high court wrote, because in Florida a judge, not a jury, imposed the sentence. Florida has halted executions since Jan. 12, when the U.S. Supreme Court handed down its decision.

On Thursday, an attorney for Hurst asked the state court to spare his client. David A. Davis cited a 1972 Florida law that says if the death penalty is found to be unconstitutional by the U.S. Supreme Court, every Florida inmate with a death sentence must have it commuted to life.

“This court — I hate to say it’s an easy job, but it’s a straightforward one,” Davis said.

Earlier in the week some of the state’s most powerful attorneys, including three former Florida Supreme Court justices, cited the same law when filing paperwork with the Florida Supreme Court, asking it to commute the sentences of all 390 inmates on death row to life in prison.

But Assistant Florida Atty. Gen. Carine Mitz argued that the law does not apply because only a portion of the state’s sentencing statute was found to be invalid. She urged the court to leave Hurst’s death sentence unchanged.

Hurst was convicted of murdering Popeye’s assistant manager Cynthia Harrison. He had stabbed or slashed her 60 times with a box cutter during a robbery.

A jury recommended the death penalty by a vote of 7-5.

Mitz argued that had a jury rather than a judge made the final decision at his trial, Hurst still would have been given the death penalty.

After the U.S. Supreme Court ruling, the Florida Legislature quickly rewrote the death penalty statute, and on March 7, Gov. Rick Scott signed it into law. Now, before the death penalty can be imposed, at least 10 jurors must vote for it.

In addition, all 12 jurors must identify and agree on at least one “aggravating factor” that explains why the inmate deserves to be put to death; for example, that the killing was especially heinous, atrocious and cruel.

Under the old law, jurors voted on whether to recommend a sentence of life or death, and a majority ruled. A judge then made the final decision.

Experts agree that the death penalty is supposed to be reserved for a narrow group of killers, the worst of the worst.

On Thursday, Florida Supreme Court Justices Barbara Pariente and Peggy Quince suggested that the new state law is flawed because it may fail in that regard. It allows jurors to recommend death based on a single aggravating factor.

“If only one aggravator is, in this state, all that is needed to put someone to death, we have a serious 8th Amendment problem,” Pariente said. The 8th Amendment prohibits cruel and unusual punishment.

Among the things that qualify as aggravating factors: if the victim is elderly, if the defendant is on felony probation, if the killing is committed during a burglary.

Now anyone convicted of killing an elderly person could be put to death, Pariente said.

“If we want a death penalty in Florida, we need it to be constitutional,” Pariente said.

It’s not clear when the Florida Supreme Court will render its ruling.

[email protected]