Newspaper article The Florida Times Union

Death Sentence Upheld for 1 Jacksonville Man; Questions on Florida Cases since 2002 Get Another off Death Row

Newspaper article The Florida Times Union

Death Sentence Upheld for 1 Jacksonville Man; Questions on Florida Cases since 2002 Get Another off Death Row

Article excerpt

Byline: Larry Hannan

The Florida Supreme Court has upheld the death sentence of one Jacksonville man while allowing a second off Death Row in rulings that will likely be the first step in addressing numerous questions on how the death penalty works in Florida.

Jacksonville white supremacist Mark James Asay, 52, had his sentence upheld Tuesday for killing two people in the 1980s. John Franklin Mosley, 52, convicted of the murder of his girlfriend and their infant child in 2004, had his his death sentence overturned and will either get a new sentencing hearing or be resentenced to life without parole.

The crux of the difference is that Asay was convicted and sentenced to death before 2002, while Mosley was sentenced to death after 2002. Both men's juries included some members who opposed their death sentences.

The rulings set a precedent that could lead to hundreds of Death Row inmates having their sentences overturned. There are now 386 people on Death Row, and estimates are that these rulings will impact 150 to 200 of them, including about 30 to 40 from Duval, Clay and St. Johns counties.

The U.S. Supreme Court issued a 2002 ruling in Ring v. Arizona that found a jury, not a judge, must make the factual findings required to sentence someone to death. Prosecutors said Florida's system was different from Arizona and still constitutional.

Since 2002, lawyers for just about every person facing death, including Mosley's, have filed motions saying Florida's sentencing procedures are unconstitutional due to the Ring decision.

Those motions have been summarily denied by judges but still preserve the issue on appeal, meaning everyone sentenced to death since 2002 can argue that they were unconstitutionally sentenced.

The motions became key this year when the U.S. Supreme Court ruled that Florida's death penalty procedures were unconstitutional because the final decision was made by a judge and not a jury. The Florida Supreme Court then followed up by saying all death sentences would require a jury unanimously mandating death.

Asay's jury recommended death by a 9-3 vote. Mosley's recommended death by an 8-4 vote.

"Essentially everyone put on Death Row since 2002 with a non-unanimous jury recommendation should be getting a new sentencing hearing," said attorney Rick Sichta, who represents Mosley.

Local Death Row inmates who could get a new trial include Rasheem Dubose, convicted of killing 8-year-old DreShawna Davis, and Rodney Newberry, convicted of shooting 38-year-old Terrese Pernell Stevens 12 times with an AK-47 while he and two other men were robbing him.

But while death penalty defendants who cited the Ring decision will likely get new sentencing hearings, the Florida Supreme Court said people such as Asay whose cases were final before 2002 will not get off Death Row.

In justifying that ruling, the Florida Supreme Court said that from the 1970s until 2002 the state's death penalty procedures were repeatedly found to be constitutional.

"This court and the state of Florida relied in good faith upon United States Supreme Court precedent for the proposition that Florida's capital sentencing scheme was constitutional," justices said in the Mosley ruling.

But justices said the ruling wasn't automatic, and attorneys who argued that Florida's sentencing procedures were unconstitutional before 2002 might still have preserved the issue for appeal. Asay's lawyers didn't do that.

Sichta said the issue will likely be litigated in every death penalty case decided before 2002.

"The question now is what happens to the cases decided before 2002 and the cases decided after 2002 where the jury recommendation was unanimous," Sichta said.

After Ring was decided, the Florida Supreme Court encouraged the Legislature to change death penalty procedures to make death sentences require a unanimous jury verdict, instead of at least a seven out of 12 majority. …

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