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Unanimous Pre-Hurst Florida Penalty-Phase Juries

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In Hurst v. Florida (2016) the U.S. Supreme Court decided that Florida's death-sentencing system was invalid because the jury did not have to be unanimous in finding the "aggravating circumstance" that made a case eligible for consideration of the death penalty.  Decades earlier, the high court had considered precisely the same question and decided that the judge's independent finding of the needed fact was sufficient.  So much for precedent and reliance.

What about cases where the jury was unanimous, even though not instructed that it had to be?  The Florida Supreme Court has affirmed the judgments in such cases, and today the U.S. Supreme Court declined to review two more of them:  Middleton v. Florida, No. 17-6850 and Tundidor v. Florida, No. 17-6735.  Justice Sotomayor, joined by Justice Ginsburg, dissents on the ground that the jury was told that its role was only advisory.

Justice Breyer also dissents based on his view that the jury must be unanimous on the final sentence, not just the eligibility determination, and that this is required by the Eighth Amendment, not the Sixth.  The unanimity requirement has been embraced by the high courts of Florida and Delaware, but basing it on the Eighth Amendment is an idiosyncratic view of Justice Breyer. 

I also wish the high court would take up a case on unanimity in the selection decision, as distinguished from eligibility, to confirm that the Alabama's Supreme Court is right and that Florida's and Delaware's are wrong.  What are they waiting for?  This case isn't the vehicle, but they have passed on some good ones.

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