Tuesday, October 27, 2015

A "Brief" Analysis in Hurst v. Florida

It’s Supreme Court season again! In response to positive feedback from last year’s posts on Supreme Court briefs, I’m going to be posting my thoughts on briefs filed in some of this year’s most high-profile cases.

Timothy Lee Hurst
A death penalty case, Hurst v. Florida, was argued earlier this month. Hurst was convicted of murder and sentenced to death. That sentence was overturned by the Supreme Court of Florida, and Hurst was re-sentenced, again to death. Under Florida law, the jury is charged with rendering an “advisory sentence,” but the ultimate sentencing decision is left to the judge. Hurst challenges the constitutionality of Florida’s sentencing laws.

Seth Waxman is the primary author of Hurst’s brief. Waxman was Solicitor General from 1997 to 2001, has logged more than 70 arguments before the Supreme Court, and has won previous death penalty cases before the Court. He is one of the nation’s most well-respected appellate advocates, and his brief—as expected—is stellar.

Facts that Make You Go Hmmmm

Good advocates know the power of helpful facts, even those that don’t speak directly to the issues on appeal. Through good drafting, Waxman gets the following helpful facts before the Court:

The jury voted for death by a slim 7-5 majority. The jury deliberated for less than 2 hours in deciding to recommend a death sentence.

Hurst suffered from brain damage consistent with fetal alcohol syndrome, had “below average adaptive functioning skills,” and borderline intelligence (an IQ somewhere between 69 and 78). At the time of the crime, Hurst was 19 years old but had to be “reminded to take care of himself…and to bathe and dress appropriately.” Two defense psychologists testified that Hurst was “mentally retarded,” yet the judge rejected Hurst’s claim that his mental retardation barred the imposition of death under Atkins.


Waxman’s brief contains several themes, one of which is apparent from the introduction: Florida’s death penalty sentencing scheme, whereby juries provide only an advisory role, is unconstitutional.

By my count, the term “advisory” appears nearly 20 times in the brief. Waxman hammers home his theme time and again: “Florida juries play only an advisory role. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”

Waxman highlights the constitutional problems with Florida’s death penalty sentencing laws in several ways:

(1) To recommend death, a jury must find at least one statutory aggravating factor. Florida presented two in Hurst’s case, but Florida law prohibits using a special verdict form that would reflect the jury’s vote on each aggravating factor. Thus, three jurors could have voted for death based on one factor and four could have voted for death based on the other factor, meaning that each aggravator could have been rejected by two-thirds of the 12 jurors.  

(2) The judge makes the ultimate sentencing decision and actually holds a separate hearing after the jury has recommended a sentence. At this hearing, the judge may consider evidence not presented to the jury and may find the existence of aggravating factors not presented to the jury. 

(3) Florida’s system goes against “centuries of practice recognizing unanimous verdicts,” “departs from the uniform position of the federal system and 49 other States in capital and non-capital cases,” and goes against the “bedrock principle that the jury system is predicated on meaningful deliberations, which a simple-majority vote cannot safeguard.”

Seth Waxman, from his days as SG
These arguments hit the law-trained reader hard. We know the importance of jury trials, of requiring a finding of guilt beyond of a reasonable doubt, and of requiring unanimity. Yet the Florida scheme seems to fly in the face of all those foundational principles—A judge decides a death sentence and can base the decision of evidence the jury never heard? Florida requires unanimity to convict a defendant of murder but not to recommend a death sentence? Florida prohibits special verdict forms that would tell a defendant which aggravating factor(s) mattered to the jury? Florida is the only state that thinks this sentencing scheme is proper?

Even to the most critical reader, Waxman’s arguments are hard to ignore.

Short Sentences

I’ve talked numerous times before about the power of short sentences. They can be used to emphasize a point, break up dense prose, and add interest. Waxman peppers his brief with these beauties:

Hildwin does not survive those later decisions.

That is the case here.

Apodaca was wrong when it was decided.

Similar logic applies here.

Next week I’ll discuss Florida’s response brief in Hurst v. Florida.

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