in the circuit court of the twentieth judicial...

STATE OF FLORIDA, Plaintiff,vs.

GRADY NELSON, Defendant. /

IN THE CIRCUIT COURT OF THE11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA

CRIMINAL DIVISIONCASE NO.: F05-846

JUDGE: COLODNY

MOTION FOR TWO JURIES

COMES NOW, the Defendant, GRADY NELSON, by and through his undersigned

counsel and pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution, Article I, sections 2, 9, 16, 17, and 22 of the Florida Constitution, hereby

moves this Honorable Court to strike the death notice, and make death not a possible penalty,

and in support thereof, would state:

I. The Capital Jury Project & Foundational Case Law

The Capital Jury Project (AThe Project@) is a multidisciplinary study of how capital

jurors make their life or death sentencing decisions; it was conducted in fourteen states and

initiated in 1990 by university-based researchers with support from the National Science

Foundation. William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of

Early Findings, 70 IND. L. J. 1043 (1995). The findings of the Capital Jury Project are based on

extensive 3-4 hour interviews with people1 who served as jurors in capital trials. Id. These

interviews sought to examine Athe extent to which jurors= exercise of capital sentencing

discretion is still infected with, or now cured of, the arbitrariness which the United States

Supreme Court condemned in Furman v. Georgia2, and the extent to which the principal kinds of

1Interviews were completed with 1198 jurors from 353 capital trials in 14 states. A sampling of 20-30 capital trials were selected in each state, including Florida, and a target sample was drawn for interviews in each case.

2Furman v. Georgia 408 U.S. 238, 309-310 (1972) holding that jurors= unguided exercise of sentencing discretion under existing statutes was unconstitutionally arbitrary and capricious.

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post-Furman guided discretion statutes are curbing arbitrary decision-making - as the Court said

they would in Gregg v. Georgia 3 and its companion cases.@ Id. (some footnotes omitted, some

footnotes added).

After the Supreme Court found unconstitutional arbitrariness in death penalty statutes

nationwide and invalidated them in Furman v. Georgia, 408 U.S. 238 (1972), the Court approved

re-enacted statutes which included specific aggravating factors, a bifurcated proceeding, and

appellate review to the highest state courts. The Court specified:

When human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.

Gregg. v. Georgia, 428 U.S. 153, 190 (1976). Post-Furman capital statutes included bifurcation

which, along with statutory aggravating factors, intended to provide protection from the arbitrary

and capricious imposition of the penalty of death. Id., at 195. A[T]hese concerns are best met

by a system that provides for a bifurcated proceeding at which [the jury] is provided with

information relevant to the imposition of sentence and provided with standards to guide its use of

the information.@ Id.

These standards, including aggravating factors, were designed to Anarrow the class of

persons eligible for the death penalty,@ and to justify the imposition of a more severe sanction.

See Zant v. Stephens, 462 U.S. 862, 877 (1983); Lowenfield v. Phelps, 484 U.S. 231, 246

(1988). Aggravating factors, combined with mitigating factors, provide Aa meaningful basis for

distinguishing the few cases in which [the death penalty] is imposed from the many cases in

which it is not.@ Furman, 408 U.S. 238 at 313.

Subsequently, in Lockett v. Ohio, 438 U.S. 586 (1978) , after recognizing that the penalty

of death is qualitatively different from other penalties, the Supreme Court held Athat the Eighth

and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as

a mitigating factor, any aspect of a defendant's character or record and any of the circumstances

3Gregg v. Georgia , 428 U.S. 153 (1976) requiring new capital statutes and sentencing guidelines to remedy the unconstitutional arbitrariness found under the prior capital sentencing schemes.

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of the offense that the defendant proffers as a basis for a sentence less than death.@ Lockett at

604-605 (emphasis in original). ATo meet constitutional requirements, a death penalty statute

must not preclude consideration of relevant mitigating factors.@ Id., 438 U.S. at 608. In fact,

Just as the state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. . . .The sentencer . . . may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.

Eddings v. Oklahoma, 455 U.S. 104, 114-115 (1982). As a consequence of requiring consideration of mitigating evidence, the Supreme Court

reversed a Florida defendant=s conviction as jury instructions at the time did not permit

consideration of non-statutory mitigation. Hitchcock v. Dugger, 481 U.S. 393 (1986). Applying

these standards specifically to Florida, to this jurisdictional court, the Court reiterated that, Ain

capital cases the sentencer may not refuse to consider or be precluded from considering any

relevant mitigating factor.@ Id., at 394. (Internal quotations and citations omitted.). Accord:

Green v. Georgia, 442 U.S. 95 (1979); Penry v. Lynaugh, 492 U.S. 302 (1989); Mills v.

Maryland, 486 U.S. 367 (1988).

In light of this controlling case law, The Project undertook its research guided by the

following objectives: A(1) to systematically describe jurors= exercise of capital sentencing

discretion; (2) to assess the extent of arbitrariness in jurors= exercise of capital discretion; and

(3) to evaluate the efficacy of the principal forms of capital statutes in controlling arbitrariness in

capital sentencing.@ Bowers, supra, at p. 1077. It is through research only that jurists can assess

the efficacy of the current constitutionally prescribed standards and procedures for capital jurors

and whether these standards and procedures are meeting the objectives set by the Court to protect

the constitutional rights of capital defendants.

As perhaps the most well respected and scholarly research of this type to date, The

Project is worthy of consideration in capital cases. Principal publications based upon The

Project draw upon statistical data and personal accounts of jurors. Over 30 articles based on The

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Project=s data have been published to date. This Motion asserts that the findings of The Project

with respect to jury instructions and early deliberations requires the striking of the Death Notice

in this case in order to preserve defendant=s constitutional rights as required by foundational

case law. Specifically, research proves that jurors make early decisions as to penalty and fail to

properly include mitigation in their decision making matrix. Such conduct is contrary to

constitutional standards and is impermissible.

II. JURORS DO NOT UNDERSTAND OR CORRECTLY APPLY SENTENCING PHASE JURY INSTRUCTIONS REGARDING MITIGATION

The Project reveals that capital jurors lack understanding of mitigation:

Jurors do not understand the term Amitigation@ and thus it is often dismissed. Unless the jurors believe that the evidence in mitigation either proves that the killing was not deliberate or furnishes an excuse for the killing, such as insanity or duress, it does not provide adequate reason to impose a life sentence. In the absence of an understanding of how to take mitigation into account, jurors naturally turn to the analogy provided for by the guilt trial, namely defenses that serve as a justification or excuse.

Ursula Bentele and William J. Bowers, How Jurors Decide Death: Guilt is Overwhelming,

Aggravation Requires Death, and Mitigation is No Excuse, 66 BROOK. L. REV. 1011 (2001)

(emphasis added). As technical jargon within the legal system, the term Amitigation@ is foreign

to most jurors and a number of the jurors interviewed for The Project failed to accurately define

the word, and at times, confused it with aggravation. Id. Moreover, Ajuror comprehension of

sentencing instructions is limited, especially with regard to instructions dealing with

mitigation . . .[T]he defendant is typically disadvantaged by the misunderstandings.@ Frank and

Applegate, Assessing Juror Understanding of Capital Sentencing Instructions, 44 CRIME AND

DELINQUENCY 3 (1998). Another study demonstrated that Athe less the jurors understand the

mitigation instructions, the more likely they are to impose the death penalty.@ Richard Weiner,

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The Role of Declarative Knowledge in Capital Murder Sentencing, 28 JOURNAL OF APPLIED

PSYCH., 2 (1998).

In Florida, the instructions on mitigation are minimal and uninformative. For example,

Florida Jury Instruction in Criminal Cases 7.11 instructs the jury that the evidence to be

presented is done so in order that they might determine, first, whether sufficient aggravating

factors exist that would justify the imposition of the death penalty, and second, whether there are

mitigating circumstances sufficient to outweigh the aggravating circumstances, if any. This

ordering and wording emphasizes aggravation and minimizes the role of mitigation. The

instruction goes on to state, A[a]t the conclusion of the taking of the evidence and after argument

of counsel, you will be instructed on the factors in aggravation and mitigation that you may

consider.@ Id. Later, the jury is told that,

[s]hould you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstances. Among the mitigating circumstances you may consider, if established by the evidence, are: . . . any of the following circumstances that would mitigate against the imposition of the death penalty:4

a. Any other aspect of the defendant=s character, record, or background.b. Any other circumstances of the offense.

Florida Jury Instructions in Criminal Cases, 7.11. This is insufficient to meet the standards set in

Lockett and its progeny. As for the burden of proof required for mitigation, the jury is instructed

that Aa mitigating circumstance need not be proved beyond a reasonable doubt. If you are

reasonably convinced that a mitigating circumstance exists, you may consider it as established.@

Id. Regarding the ultimate weighing of mitigating and aggravating circumstances, the jury is

instructed that, A[y]ou should weigh the aggravating circumstances against the mitigating

circumstances, and your advisory sentence must be based on these considerations.@ Id.

For the reasons stated above and set forth below, Defendant asserts Florida=s pattern

jury instructions fail to adequately explain mitigation to juries. Capital defendants, therefore,

44It is significant that when the court instructs the jury to consider the mitigating circumstances, it instructs with specificity only on statutory mitigation, and then turns to the general instructions to consider Aaspects of defendants character, record, or background,@ and Aany other circumstances of the offense.@

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still risk receiving arbitrary and capricious imposition of death. Accordingly, Defendant argues

that the Court should strike the death notice in this case, as the instructions fail to educate jurors

about mitigation and its application in the penalty phase. Defendant further and respectfully

argues that not only ought the Court strike the death notice in this case, but it must do so as the

law imposes upon the Court a duty to instruct juries on the law, and the current instructions fail

to ensure a proper application of the law to the facts of a capital case, and fail to ensure that a

jury carries out its constitutional duty to consider and give effect to mitigation.

III. The Requirement of Correct Jury Instructions

Under Florida law, a trial court judge has a duty to instruct the jury on the law. Rule

3.390(a), Florida Rules of Criminal Procedure, provides in pertinent part, AThe presiding judge

shall charge the jury only upon the law of the case at the conclusion of argument of counsel.@

Due process requires instructions as to what the state must prove in order to obtain a conviction.

See Screws v. United States, 325 U.S. 91, 107, 65 (1945). (AEven those guilty of the most

heinous offenses are entitled to a fair trial.@). It is fundamental error to fail to instruct the jury

correctly as to what the state must prove in order to obtain a conviction. State v. Delva, 575

So.2d 843 (Fla. 1991), Sochor v. State, 580 So.2d 595 (Fla. 1991).

In the present case, the instructions are insufficient to impart to the jury a basic

understanding of the role and import of mitigation. Empirical data has shown that Anearly one-

third of actual jurors were under the mistaken impression that the law required a death sentence

if they found heinousness or dangerousness.@ Eisenburg, Garvey, and Wells, Jury

Responsibility in Capital Sentencing: An Empirical Study, 44 BUFF. L. REV. 339 (1996);

accord, Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings,

70 IND. L. J. 1043, 1091, n. 32 (1995). One Florida study of death penalty jurors found a

significant number of jurors believed that the death penalty was mandatory or presumed for first

degree murder. Geimer and Amsterdam, Why Jurors Vote Life or Death: Operative Factors in

Ten Florida Death Penalty Trials, 15 AM. J. CRIM. L. 1 (1989).

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A significant number of jurors in death penalty cases believed that the death penalty was mandatory or presumed for first degree murder. In the death recommendation cases, over half of the jurors believed that death was to be the punishment for first degree murder, or at least that death was to be presumed appropriate unless the defendant could persuade the jury otherwise5.

Id. This data is consistent with other studies. AAstonishingly, more than half of the jurors

said that they personally felt death is the only appropriate punishment for...premeditated murder

and multiple murder.@ Bowers, Sandys, and Steiner, Foreclosed Impartiality in Capital

Sentencing: Jurors= Predispositions, Attitudes, and Decision Making, 83 CORNELL L. REV.

1476, 1504 (1998). AA substantial percentage of jurors believed the death penalty is the only

appropriate punishment for convicted murderers.@ Garvey, The Emotional Economy of Capital

Sentencing, 75 N.Y.L. SCH. L. REV. 26, 38 (2000). AThere appears to be a presumption that

clear unequivocal proof of guilt justifies the death penalty.@ Bowers, Sanday, and Steiner,

supra, 83 CORNELL L. REV. at 1497-98.

This Apresumption of death@ is based on data suggesting that Athe sentencing phase of

capital trial commences with a substantial bias in favor of death.@ Eisenbery, Garvey, and

Wells, supra, 44 BUFF. L. REV. 339. This inclination toward death Asuggests that a defendant

with a confused jury may receive the death sentence by default, without having a chance to

benefit from the legal standards designed to give him a chance for life.@ Eisenbery, Garvey,

and Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV 1, 38,

n.12 (1992). Amazingly, A[w]hen jurors report pre-deliberation indecision about either guilt or

sentence, the undecided jurors tend to vote for death.@ Id. at 13.

These findings demonstrate that the current instructions are woefully inadequate to

correctly instruct the jury as to the role and import of mitigation. This research shows that

without substantially modified and improved instruction, a task that the Florida Supreme Court

has not done, it is probable that defendant=s rights will be abrogated by the jurors= processes,

5As an aside, this raises burden-shifting issues which are insufficiently addressed by the present instructions.

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making the striking of the death notice in this case and making death not a possible penalty the

only viable remedy.

IV. PREMATURE DECISION MAKING ABOUT PENALTY

As previously stated, armed with this presumption of death, jurors impermissibly reach a

decision regarding penalty before the sentencing stage of the trial begins. AInterviews with 916

capital jurors in eleven states reveal that many jurors reached a personal decision concerning

punishment before the sentencing stage of the trial, before hearing evidence or arguments

concerning the appropriate punishment, and before the judge=s instructions for making their

decision.@ Bowers, Sandeys, and Steiner, supra, 83 CORNELL LAW REV. at 1477. Almost

one half of the capital jurors in the eleven Capital Jury Project states thought they knew what the

punishment should be during the guilt phase of the trial, and forty percent (40%) of Florida

capital jurors took a stand on punishment before the penalty phase. Id., at 1488-89. That is,

jurors begin the decision making process about the penalty phase of proceedings before

instruction on mitigation or presentation of mitigation evidence contrary to a defendant=s

constitutional rights.

The defendant has a constitutional right to an individualized sentencing which requires

consideration of the character and record of the individual offender and the circumstances of the

particular offense. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). When jurors

prematurely form opinions as to penalty, as research proves they do, there is no such

consideration. It is, therefore, imperative that the Court do all it can to ensure jurors

appropriately undertake this analysis, and undertake it at the appropriate phase of the

proceedings. Such education of the jury by the court must begin when the proceedings begin.

In Morgan v. Illinois, 504 U.S. 719 (1992), the Court considered the refusal of the trial

court to permit defense counsel to conduct meaningful voir dire on the question whether the

potential jurors would automatically impose the death penalty. After recognizing that general

inquiries about Abeing fair@ and Afollowing the law@ are insufficient to detect such views, the

Court held that jurors who are unalterably in favor of the death penalty Aby definition are ones

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who cannot perform their duties in accordance with law, their protestations to the contrary

notwithstanding.@ Id., at 735.

[T]he belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual=s inability to follow the law. YAny juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of the law.Such jurors obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty: they not only refuse to give such evidence any weight, but are also plainly saying that mitigating evidence is not worth their consideration and they will not consider it.

Id. at 735-736. Thus, any court or jury member to whom mitigating factors are irrelevant

Ashould [disqualify himself or] be disqualified for cause, for that [person] has formed an opinion

concerning the merits of the case without basis in the evidence developed at trial.@ Id. at 739.

Moreover, in order to preserve a capital defendant=s constitutional rights, jury instructions and

voir dire should take into account jurors= predisposition to prematurely begin the decision

making process regarding penalty.

The fact that a large proportion of capital jurors, including Florida jurors, reach a decision

about the appropriate sentence before the beginning of the penalty phase, or before they have

evidence, arguments, and instructions on mitigation, renders the penalty phase proceeding

constitutionally infirm. Regardless of whether jurors= inability to withhold forming an opinion

comes from the death qualification process itself or jurors= personal views combined with the

gruesome nature of capital case evidence, the fact is that a substantial percentage of jurors

impermissibly Arefuse to give [mitigating] evidence any weight [and] are also plainly saying that

mitigating evidence is not worth their consideration and they will not consider it.@6 Id. at 735-

736. Morgan = s requirement that capital jurors give consideration and effect to mitigation goes

beyond the right of the defense to present mitigation evidence. Jurors who have already decided

the defendant=s penalty prior to the sentencing phase fail to consider mitigation evidence and

cannot, therefore, give effect to such evidence. Such failure violates the Eighth Amendment=s

66This raises implications regarding jury selection and the single jury/bifurcated trial system to be addressed in a subsequent motion. The focus of this Motion is the lack of proper instructions on mitigating circumstances, the obvious need for better guidance to the jury about the role of mitigation, and the inability to get a fair and impartial jury as to penalty.

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prohibition against cruel and unusual punishment, as well as the Sixth Amendment right to an

impartial jury.

These violations are underscored by the results of research designed to determine the

level of certainty of the jurors= early stand on punishment. The Project=s findings show that

most jurors who reportedly took an early stand during the guilt stage of the trial state that they

were Aabsolutely convinced@ of their position at that procedurally premature point of the

proceedings. Bowers, Sandys, and Steiner, supra, 83 CORNELL LAW REV. 1476, A[M]ost

boldly affirmed that they were convinced of what the punishment should be without reservation,

even before hearing the evidence and arguments at the sentencing stage of the trial.@ Early pro-

death stands were found to be one and a half times more common than early pro-life stands. Id.

at 1532.

The certainty of jurors= belief in the proper punishment at an early stage of the trial is

clearly at odds with having an open mind and following the court=s instructions not to form any

definite or fixed opinions about the case as required by Florida Standard Jury Instruction 2.1.

These early decision makers close their minds to mitigation, and potentially effect the decisional

process of their co-jurors at this early stage. The Project found that:

The most surprising and disturbing finding is the extent to which jurors discussed the legally irrelevant and likely confounding matter of the defendant=s punishment during their determination of guilt. Three to four of every ten jurors indicated that what the defendant=s punishment could be, would be, or should be was discussed during guilt deliberations.

Id. at 1519. Moreover, according to the research, jurors experience the temptation to talk about

punishment, even when they know and acknowledge that it is inappropriate to do so. Id. at 1528.

When the penalty is prematurely part of the guilt phase discussions,

Pro-death jurors often declare B sometimes in forceful, impassioned words B that the law requires death or that the character of the crime or of the defendant demands it. YThey argue that the jury was selected for its ability to impose death, and they allay others reluctance to impose death by saying jurors must not feel personally responsible for the defendant=s punishment, that judges are the ones who actually impose the sentence, and that the death penalty is

seldom carried out.

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Id., at 1529.

The implications are daunting. Y[P]remature decision making appears to violate the precept of guided capital sentencing discretion that Gregg Y endorsed as the remedy for the arbitrariness and caprice that Furman held unconstitutional.

Id. In addition, because a defendant may not present evidence until the second phase of a capital

trial, an early decision that death is the appropriate penalty violates the Supreme Court=s rulings

in Morgan v. Illinois, Lockett v. Ohio, Eddings v. Oklahoma, and Skipper v. South Carolina.

Given the extent and pervasiveness of jurors early decision making as to penalty,

this Court must come to the conclusion that our bifurcated system is ineffective in

Achanneling the discretion of the sentencer,@ Lowenfield v. Phelps, 484 U.S. 231, 246

(1988), or in distinguishing the Amost aggravated and least mitigated of murders@ from

the many cases in which the death penalty is not imposed. Furman at 313. (White, J.

concurring). If substantial numbers of jurors do not consider mitigation, they cannot act,

as required, Ain good faith to consider the evidence of aggravating and mitigating

circumstances as the instructions require.@ Morgan, 504 U.S. at 729.

V. CONCLUSION

For the preceding reasons, defendant asserts that since it is (1) probable that jurors in his

case will impermissibly fail to properly understand how mitigation applies to his case; (2)

probable that jurors will fail to properly analyze mitigation evidence in violation of his

constitutional rights; and (3) probable that jurors in his case will impermissibly come to

premature decisions about punishment in his case in violation of his constitutional rights, he

requests the Court enter an Order Striking the Death Notice and making death not a possible

penalty.

I HEREBY CERTIFY that a true and correct copy of the foregoing motion was

mailed to the Office of the State Attorney, 1350 N.W. 12th Avenue, Miami, Florida 33136

this ___ day of May, 2009.

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Respectfully submitted,

Swartz & Lenamon 100 N. Biscayne Blvd., Suite 3070 Miami, Florida 33132 (305) 579-9090

By: _______________________ Terence M. Lenamon Florida Bar No.: 970476





JUDGE: COLODNY

ORDER GRANTING MOTION FOR TWO JURIES

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THIS CAUSE having come before this Court to be heard on Defendant’s MOTION FOR TWO JURIES and the Court being advised of the premises, it is hereby:

ORDERED AND ADJUDGED that the MOTION FOR TWO JURIES is GRANTED, and it is further ORDERED that two different juries be selected, with one jury being utilized for the guilt phase of this cause and the other jury being utilized for the penalty phase of this cause.

DONE AND ORDERED in chambers in Dade County, Florida this ____, day of ______, 2009.

_____________________ Circuit Court Judge





JUDGE: COLODNY

ORDER DENYING MOTION FOR TWO JURIES

THIS CAUSE having come before this Court to be heard on Defendant’s MOTION FOR TWO JURIES and the Court being advised of the premises, it is hereby:

ORDERED AND ADJUDGED that the MOTION FOR TWO JURIES is DENIED.

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DONE AND ORDERED in chambers in Dade County, Florida this ____, day of ______, 2009.

_____________________ Circuit Court Judge

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in the circuit court of the twentieth judicial...

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