Lawyers for a Death Row inmate Larry Darnell Perry are blasting Attorney General Pam Bondi's request that the Florida Supreme Court clarify a decision that struck down a new law because it did not require unanimous jury recommendations in death-penalty cases.
In the Oct. 14 decision in Perry's case, a 5-2 majority of the court found that the law was unconstitutional because it only required 10 of 12 jurors to recommend the death penalty and that it "cannot be applied to pending prosecutions."
Bondi's lawyers, in the request for clarification, maintained that cases in which prosecutors are seeking the death penalty can move forward, even without a change in the law, so long as trial courts require unanimous recommendations.
But in a response filed Thursday, Perry's lawyers accused Bondi of essentially asking the courts to rewrite the law, something the defense lawyers argued can only be done by the Legislature.
"Simply put, there is no need for this court to 'clarify' its decision --- which could not be clearer --- and which properly respects the role of the Legislature under the Florida Constitution's separation of powers doctrine. Indeed, it is obvious that respondent (Bondi's office) is not seeking 'clarification' at all," lawyers J. Edwin Mills and Frank Bankowitz wrote in the 12-page document.
The response by the lawyers representing Perry, who was convicted in the 2013 murder of his infant son, is the latest in a drawn-out battle over the state's death penalty.
In a case known as Hurst v. Florida, the U.S. Supreme Court in January ruled that the state's death-penalty sentencing system was unconstitutional because it gave too much power to judges, instead of juries.
At the urging of Bondi and prosecutors, the Legislature in March passed a law that requires at least 10 jurors to recommend that the death penalty be imposed.
Defense lawyers repeatedly warned lawmakers that failing to require unanimous jury recommendations would further endanger the state's death penalty, a caution borne out by the Florida Supreme Court's decisions in a pair of cases --- Hurst's and Perry's --- last month.
In a strong signal that courts may not be able to move forward with capital trials until the Legislature changes the statute, the Florida Supreme Court on Friday stopped a Clearwater judge from proceeding with a death penalty case.
Perry's lawyers on Thursday accused Bondi of attempting an "end-run" around limitations on requests for rehearings by raising new issues in her request for clarification. For example, lawyers seeking a rehearing are barred from making new arguments.
"Respondent (Bondi's office) simply believes that this court was wrong in holding that the lack of a unanimity requirement for the jury's final vote rendered the statute unconstitutional," the defense lawyers wrote. "The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy."
Arguing that the courts cannot rewrite statutes, Perry's lawyers relied on a decade-old case, known as State v. Steele. In the 2005 case, the state argued against allowing trial courts to adopt individual procedures in death penalty cases. The majority of justices agreed, writing that "any changes should be made systematically" to ensure consistency in the death penalty sentencing process, Perry's lawyers noted.
Perry lawyers also asked that, if the court is going to allow death penalty cases to move forward without a rewrite of the statute, that the changes be made by the Supreme Court and "not by trial judges."
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