Florida Supreme Court sets rules for existing death row inmates

A Jacksonville man is being taken off death row while another is seeing his stay of execution lifted, as the Florida Supreme Court continues to unravel new rules around the state’s death penalty sentencing scheme.

The two cases involved deal with Mark Asay, sentenced to death for killing two black men in 1987 in racially motivated incidents, and John Mosley, sentenced to life in prison for the murder of his girlfriend and to death for the murder of his infant son in 2004.

Earlier this year, the US Supreme Court ruled in Hurst that the state's death penalty sentencing scheme is unconstitutional, because it required the jury to make a majority recommendation, but had the judge issue the final sentence. The High Court said it's unconstitutional to allow the judge to consider factors that weren't found by the jury.

Florida lawmakers passed a new sentencing scheme that required a ten vote majority, but the Florida Supreme Court recently found that to be unconstitutional as well, holding in Perry that a death sentence must be imposed by a unanimous jury. That ruling did not explicitly settle what would happen with inmates already on death row who were sent there by a non-unanimous jury.

Now, these two new rulings- Asay and Mosley- are giving some clarity to that, and the dividing line is the 2002 Ring case decided by the US Supreme Court.

In Ring, the Court found Arizona's death penalty sentencing scheme unconstitutional because a sentencing judge, with no sitting jury, could find aggravating circumstances needed to impose a death sentence. Florida's law was discussed in the ruling, but the Florida cases were not explicitly mentioned, leaving it to the Florida Supreme Court to interpret the impact. The State Court determined Ring did not impact Florida, because the state had- at the time- a hybrid capital sentencing scheme. That decision was, however, a matter that deeply divided the court.

In the US Supreme Court's Hurst ruling earlier this year, it was concluded that Ring did, in fact, apply in Florida, noting that while the jury advises, the judge still has freedoms that should not be allowed.

As a result, the Florida Supreme Court says Mosley, who based many of his appeals on Ring, but was denied, should get a new penalty phase. The ruling says the appeals were turned down because of the precedent that was set with Ring, so "fundamental fairness" requires Hurst to be retroactive in his case, now that the Court has a new interpretation that Ring applies to Florida.

The ruling goes further to say Hurst should be applied to other defendants whose sentences became final after Ring as well. Because the fundamental objection is that Mosley and others were sentenced without a unanimous jury- which has since been ruled unconstitutional- it's likely that the Hurst retroactivity is only for those who received death penalties without a unanimous jury.

Asay’s case, however, is a different story.

The Florida Supreme Court says cases that were completed before Ring, like Asay, should not be granted a new penalty phase, because they "extensively relied on the constitutionality of Florida's death scheme based on the decisions of the United States Supreme Court". Additionally, the State Court says a substantial number of cases would be upended if this ruling were retroactive, and it would be difficult to reassemble witnesses and evidence that is decades old.

In March, the Florida Supreme Court stayed Asay's execution "pending further order". That stay of execution has now been lifted.