TALLAHASSEE, Fla. — After Gov. Ron DeSantis and the Legislature this spring eliminated a requirement for unanimous jury recommendations before death sentences can be imposed, the Florida Supreme Court said Tuesday it will decide whether the new law should apply to resentencing proceedings for two men convicted of committing murders in 1997.
The Supreme Court issued stays in the Wakulla County cases of Jason Looney and Guerry Hertz after their attorneys appealed a decision by Circuit Judge J. Layne Smith that would allow the new law to apply. The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors — an easier standard than requiring unanimity.
Looney and Hertz were initially sentenced to death for murdering two people in 1997, but the death sentences were vacated in 2017 and new sentencing proceedings ordered, according to court documents. Their attorneys contend that a 2017 law requiring unanimous jury recommendations should govern their cases and that the new law should not apply “retroactively.”
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“To permit the (resentencing) trial to go forward with the trial court’s (Smith’s) ruling intact would deprive petitioner (Looney) of the relief he was granted in 2017 and constitute a fundamental denial of due process,” Looney’s attorney, Baya Harrison, wrote in a petition filed Sunday at the Supreme Court.
Attorney General Ashley Moody’s office said in responses filed Sunday that it did not object to the Supreme Court placing stays on the resentencing proceedings in Wakulla County. It said that “due to the importance of the issue and its statewide impact, it would be wise to resolve the issue of the constitutionality of the death penalty statute as soon as possible and in this (Supreme) Court.”
DeSantis and the Republican-controlled Legislature scrapped the unanimous-recommendation requirement after Nikolas Cruz last fall received a life sentence in the murders of 17 students and faculty members at Marjory Stoneman Douglas High School in Parkland. The life sentence came after a Broward County jury did not unanimously agree he should receive the death penalty.
The State Attorney’s Office in the 2nd Judicial Circuit, which includes Wakulla County, filed a motion in April to use the new law in the resentencing of Looney and Hertz. Jury selection was scheduled to start this week in the resentencing proceedings, which are similar to a trial.
In the motion, prosecutors wrote that the new law is “procedural in nature and must be the law utilized by this (circuit) court in the defendants’ resentencing trial. Procedural law is one in which the law provides or regulates the steps by which a defendant who violated a law is punished.”
Smith in a May 22 order agreed that the shift away from a unanimous-recommendation requirement was procedural and, as a result, the new law should apply.’
“Distinguishing substantive (changes) from procedural is tricky at best,” Smith wrote. “The answer turns on whether the amendments rob the defendants of vested substantive rights or merely change modes of procedure.”
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But the petition filed by Looney’s attorney at the Supreme Court described the new law as “a knee-jerk reaction to state (prosecutors) failing to obtain a death sentence for Nicholas (sic) Cruz in the Parkland school shooting case and in response to political pressure from the executive.”
“The purpose of the amendment (to the law) wasn’t just to change the manner in which capital proceedings are conducted, but to make it easier for the state to impose a death sentence and harder for the accused to defend against it,” the petition said. “That is a substantive change that will directly increase the likelihood of a death sentence.”
Looney and Hertz were convicted of murdering Melanie King and Robin Keith Spears and burning the victims’ homes during a robbery. The men were later arrested after a chase and shootout with police in Daytona Beach Shores.
Florida long allowed judges to impose death sentences based on majority jury recommendations. But that changed after decisions in 2016 by the U.S. Supreme Court and the Florida Supreme Court.
In January 2016, the U.S. Supreme Court in a case known as Hurst v. Florida, ruled that the state’s death-penalty system was unconstitutional. In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required.
The Legislature responded in 2017 by putting such a unanimous requirement in law.
After DeSantis took office in January 2019, he made appointments that created a conservative majority on the Florida Supreme Court. In 2020, the court reversed course and said unanimous jury recommendations were not needed.
That helped clear the way during this year’s legislative session for lawmakers to eliminate the unanimity requirement.
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