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ACLU, others join in Delaware death penalty arguments

ACLU of Delaware says in court briefs that juries should be unanimous in their decision to impose death.

Jessica Masulli Reyes
The News Journal
The Delaware Supreme Court hears a case on Oct. 28 in Dover. The court is weighing whether Delaware's capital punishment process is unconstitutional.

The court has agreed to consider arguments over the constitutionality of Delaware's capital punishment statute from the American Civil Liberties Union Foundation of Delaware and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

The court is also still considering whether it will hear arguments from the Atlantic Center for Capital Representation, a death penalty information center in Philadelphia.

All three have filed motions for leave. This allows them to offer their opinions as friends of the court, even though they are not parties in the case.

The Delaware Supreme Court could receive a flurry of requests from interested parties as it considers whether the death penalty sentencing practice is unconstitutional in light of a U.S. Supreme Court ruling faulting Florida's similar death penalty system in January. The U.S. Supreme Court said the system gave too much power to judges and not enough to juries.

Only three states – Delaware, Alabama and Florida – allow for judicial overrides, a practice in which a judge can order a death sentence even if a jury votes for life in prison. Judges in Delaware, however, have not been using that power.

The ACLU and Atlantic Center for Capital Representation both argue in their brief to the court that the current scheme in Delaware is unconstitutional and invalid.

The ACLU's attorneys argued that the Delaware and U.S. constitutions require unanimous decisions by juries in order to impose a death sentence. The ACLU's brief relied extensively on the history of the jury trial from the Middles Ages to World War I to today.

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"The scheme is in clear contravention of the holding of Hurst v. Florida, that the Sixth Amendment to the United States 'requires a jury, not a judge, to find each fact necessary to impose a sentence of death,'" the ACLU brief said.

Delaware currently requires a jury to unanimously agree that the evidence shows beyond a reasonable doubt that at least one of 22 statutory aggravating factors have been met once a person is found guilty of first-degree murder.

Then each juror has to decide whether the aggravating factors outweigh the mitigating factors. That decision does not need to be unanimous, and the judge is not bound by those findings.

Even if the recommendation is for death, the judge has the final authority and must separately determine and weigh the aggravating and mitigating factors.

"The jury's role under the Delaware capital sentencing statute is insufficient by itself to determine the facts necessary for a death sentence," the ACLU brief said.

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The Atlantic Center for Capital Representation argued that the nature of the scheme, in which the jury issues only a recommendation and not a sentence, unconstitutionally minimizes the jury's sense of responsibility in determining the existence of a aggravating factors.

"A recent study on Delaware capital jury deliberations, which relied upon juror interviews, suggests that due to the advisory nature of the Delaware system, jurors may not be truly engaged in determining if a statutory aggravator exists beyond a reasonable doubt," the Atlantic Center for Capital Representation brief said.

Alabama and Florida are also grappling with similar questions about the impact of the U.S. Supreme Court ruling. An Alabama judge last week threw out the state's system for imposing the death penalty.

​"There is a time and place for diplomacy and subtlety," Jefferson County Circuit Judge Tracie Todd wrote in an opinion. "That time and place has been expunged by the dire state of the justice system in Alabama. It is clear, from here on the front line, that Alabama's judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect."

Alabama Attorney General Luther Strange said his office is reviewing Todd's order and expects to file an appeal.

"Alabama's capital sentencing statutes are constitutional," Strange said last week. "Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre-trial motion, and the Court refused to declare Alabama's capital statute's unconstitutional."

The same day Florida lawmakers passed a bill to revamp a similar sentencing mechanism. The Florida Legislature on Thursday passed a bill that would require at least 10 out of 12 jurors recommend the death penalty for it to be carried out.

In Delaware, all capital murder trials are currently on hold while the Delaware Supreme Court reviews the issue. There are currently 13 people on death row.

Sponsors of a bill to eliminate capital punishment in Delaware announced Monday that they would not seek a re-vote in the House of Representatives this week and would await the Delaware Supreme Court's ruling.

The Associated Press contributed to this report.

Contact Jessica Masulli Reyes at 302-324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.