Disparate Death-Penalty Rulings in Same Florida Murder Case Raise Arbitrariness Concerns

The Florida Supreme Court issued rul­ings in thir­teen death penal­ty cas­es in the last two weeks of 2018, uphold­ing con­vic­tions and death sen­tences in ten, revers­ing one death sen­tence, remand­ing one case for a new hear­ing on intel­lec­tu­al dis­abil­i­ty, and allow­ing lim­it­ed DNA test­ing in anoth­er case. The most notable of the deci­sions came in the cas­es of Gerald Murray (pic­tured left) and Steven Taylor (pic­tured, right), decid­ed on December 20, 2018, who were sen­tenced to death for the same mur­der and raised exact­ly the same chal­lenge to their uncon­sti­tu­tion­al death sen­tences. Murray’s death sen­tence was over­turned, but Taylor’s was upheld, renew­ing crit­i­cism that the Florida Supreme Court has arbi­trar­i­ly and unfair­ly applied its deci­sions declar­ing that death sen­tences that are based on non-unan­i­mous jury sen­tenc­ing rec­om­men­da­tions are unconstitutional.

Murray and Taylor were tried sep­a­rate­ly for the same 1990 Jacksonville bur­glary, sex­u­al assault, and mur­der. Taylor was tried once and sen­tenced to death by the tri­al judge fol­low­ing a 10 – 2 jury rec­om­men­da­tion for death. The Florida Supreme Court decid­ed his direct appeal in 1993. His con­vic­tion and death sen­tence became final in October 1994, when the U.S. Supreme Court declined to review his case. Because of a series of con­sti­tu­tion­al errors in Murray’s case, his con­vic­tion was over­turned twice and the death penal­ty imposed against him in anoth­er tri­al also was over­turned. The tri­al judge imposed a death sen­tence in his fourth tri­al fol­low­ing an 11 – 1 jury rec­om­men­da­tion for death. The Florida Supreme Court upheld that con­vic­tion and death sen­tence on direct appeal in 2009, and the con­vic­tion and sen­tence became final when the U.S. Supreme Court declined to review his case lat­er that year.

In January 2016, in Hurst v. Florida, the U.S. Supreme Court ruled that the sen­tenc­ing pro­ce­dures under which both Murray and Taylor were tried vio­lat­ed Florida cap­i­tal defen­dants’ Sixth Amendment right to have a jury deter­mine all the facts that could sub­ject them to the death penal­ty. Later that year, the Florida Supreme Court ruled in Hurst v. State that the Sixth Amendment vio­la­tion could nev­er be harm­less in a case in which one or more jurors had vot­ed for life and that death sen­tences based on such non-unan­i­mous jury ver­dicts also vio­lat­ed the Florida state con­sti­tu­tion. However, the court also decid­ed that it would lim­it enforce­ment of its con­sti­tu­tion­al rul­ing to cas­es that became final after June 2002, when the U.S. Supreme Court first announced the Sixth Amendment right to jury factfind­ing in the penal­ty-phase of a cap­i­tal tri­al. At that time, Justices Pariente and Perry dis­sent­ed, call­ing the appeal cut­off date arbi­trary. In her December 20 con­cur­ring opin­ion in Taylor’s case, Pariente called the Murray and Taylor rul­ings ​“the text­book exam­ple of the ​‘unin­tend­ed arbi­trari­ness’” she had warned about in her pri­or dis­sent. ​“Taylor and Murray were both con­vict­ed of first-degree mur­der and sen­tenced to death after nonunan­i­mous jury rec­om­men­da­tions for death for the mur­der of Alice Vest in September 1990. Yet, only one will receive a new penal­ty phase. Clearly, the Court’s line-draw­ing for the retroac­tiv­i­ty of Hurst cre­ates uncon­sti­tu­tion­al results for defen­dants like Taylor,” she wrote.

In oth­er cas­es, the Florida Supreme Court on December 28 reversed a tri­al court deci­sion that had reject­ed Jermaine Foster​’s claim that he was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. The court held that the tri­al court had applied an uncon­sti­tu­tion­al stan­dard for eval­u­at­ing whether Foster was intel­lec­tu­al­ly dis­abled and direct­ed the court to recon­sid­er Foster’s claim using con­tem­po­rary clin­i­cal diag­nos­tic stan­dards. On December 20, it upheld a tri­al court rul­ing that had per­mit­ted lim­it­ed DNA test­ing for Andrew Gosciminski but reject­ed his claim that the denial of addi­tion­al test­ing vio­lat­ed his due process rights.

(Read the Florida Supreme Court deci­sions in State v. Murray, No. SC17-707 (Fla. Dec. 20, 2018), and State v. Taylor, No. SC18-520 (Fla. Dec. 20, 2018).) See Arbitrariness and Background on Hurst v. Florida.