Prosecutors say Del. death penalty differs from Florida

Prosecutors are arguing to the Delaware Supreme Court that the state's capital punishment process avoids the pitfalls that made the the U.S. Supreme Court strike down Florida's process.

The U.S. Supreme Court in January found that Florida's scheme gave too much power to judges and not enough to juries. The Delaware Supreme Court is now weighing whether Delaware's process is also unconstitutional in light of that decision.

Three attorneys from the Delaware Department of Justice, including Chief of Appeals Elizabeth R. McFarlan, filed a 44-page brief refuting arguments made by public defenders that Delaware's statute is unconstitutional.

"Delaware’s capital sentencing procedure provides the constitutional safeguards the United States Supreme Court concluded were lacking in Florida," they wrote.

The DOJ did not wish to comment beyond what was filed in court.

In Delaware, the process of sentencing someone to death requires multiple steps.

Once a person is found guilty of first-degree murder, the jury must unanimously agree that the evidence shows beyond a reasonable doubt that at least one of 22 statutory aggravating factors exists.

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.

The jury's verdict is advisory, leaving judges with the final authority in sentencing.

"Nothing in [the Florida decision] prevents a state from having the judge determine the sentence," the prosecutors wrote.

They said Florida's death penalty process looks similar to an older version of Delaware's statute. However, the General Assembly in 2002 changed the statute, barring the Superior Court from imposing a death sentence unless a jury first determines unanimously and beyond a reasonable doubt that at least one statutory aggravating circumstance exists.

"Florida's statute retained the role of the jury as advisor, akin to the 1991 version of [Delaware's law]," they wrote.

Delaware is one of 32 states with capital punishment. The last execution in the state was in 2012, when Shannon Johnson, 28, was killed by lethal injection. Johnson had been convicted in the 2006 shooting death of Cameron Hamlin, 26, an aspiring musician.

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Delaware, Alabama and Florida are the only states that allow judges to override a jury's recommendation of life and, instead, impose a sentence of death.

Following the Florida ruling, attorneys and judges questioned what they could mean in Delaware, where there are over two dozen pending death penalty cases and 14 men on death row.

The Delaware Supreme Court agreed to consider five questions of the law and to hear arguments from both sides. President Judge Jan R. Jurden issued a temporary stay on all pending capital murder trials while the issue is resolved.

The court is using as a test case that of Benjamin Rauf, the Temple University law graduate charged with gunning down classmate Shazi Uppal, 27, in the parking lot of a Hockessin nursing home last summer. State prosecutors are seeking the death penalty for Rauf.

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