"occupation" and self-determination mentioned anywhere in the mainstream media by the proper context. and we do not apply the same standard of human rights in palestine and israel as we preach elsewhere globally. then,really surprising, that the subjugated and depressed choose to fight the illegal occupier to the legitimate right to freedom and self-determination? for far too long, other legal, economic, political, and media channels have been exhaustively locked. mr. president, for each time a cycle of violence erupts, we silence innocent lives, women and children, traumatized. the security council shares the fore -- shares the blame allowing this to proceed with impunity. enough is enough.

malaysia wishes to unequivocally international. or protections for the occupied palestinian territory. such production would -- such action would prevent human rights in occupied palestinian territories. it would also benefit israelis by addressing the security concerns. the call protection, in line with national law, would injure the possibility for all parties enforcementict and international rights law. two main thing -- to maintain peace and security in the occupied territory.

the council must not delay discussions on the proposal. malaysia looks forward to working with the human secretary-general and other council members in this regard. in noting the statement by the percentage of of the russian federation -- by the representative of the russian federation, we underscore the importance of its engagement within this council. mr. president, in calling for you when protection -- for u.n. protection, we must not lose a site for convenience of solutions to the conflict. 70 years after the failure to grant self-determination for the palestinian people, the international community has lost any pretext for a legitimate excuse to further exacerbate the israeli occupation. ineffectual quartet meetings begin to appear to prolong

occupations and to deny justice, dignity, and freedom to the palestinian people. meanwhile, israeli illegal settlements continue expanding, giving rise to questions on the sincerity of israeli commitment to a two state solution. in the first half of this year alone, the number of settler homes built in the west bank had increased by city 4.8% -- increased by 64.8%. decades of impunity, illegal israeli policies and practices, and systematic dehumanization of palestinians. we are seeing an acceptable increase in terrorist attacks by extremist israeli settlers. we cannot deny that the continuing occupations of is atine and the unjust rallying point worldwide.

malaysia stresses the need for the council to act urgently interview of the deteriorating situation on the ground to address the root cause of the conflict and to finally put an end to the longest occupation in modern history. if we continue to turn a blind eye to the problem, there is no doubt that we will pay a much higher price in the future. which will not be in the long-term interests of stein, israel, or the world. -- in the long-term interests of palestine. >> i thank you for your statement and give the floor to the ambassador of chad. >> thank you, mr. president. i would like to thank jordan for having taken this initiative to hold this public meeting and the spanish presidency for having convened it so rapidly. theuld also like to thank

assistant secretary-general for political affairs for his briefing. president, chad is gravely concerned by the upsurge in violence in the occupied palestinian territories, particularly in east jerusalem. this has been provoked by the recent incursions by extremist settlers. these incursions have led to a number of manifestations of legitimate anger against the endless israeli occupation and the repressive acts each occur blindly, and the continued humiliation of the palestinian civilian population. we strongly condemn all violence

from whichever side against innocent civilians. the growing number of civilian victims has been recorded, including women and children, since the beginning of this month. they indicate the scope of the violence taking place in the occupied territories, and in --rticular these acts of repression or unacceptable. they represent a flagrant violation of international humanitarian law and particularly, the fourth geneva convention. situation, thes international community in particular must assume it's responsible of the -- must assume it's responsibilities without delay. it must take appropriate measures to ensure the protection of palestinian civilians.

the security council must act urgently in order to put an end to these serious violations and ensure that the provocation by extremist settlers, which are poisoning the situation, particularly the combination of holy sites, should no longer be repeated. the international community should not accommodate itself with all the horrors that palestinian people experienced on a daily basis. the occupying power should not injure total impunity -- should not endure total impunity with regard to the violations it does not cease to commit against innocent civilian populations. mr. president, this new worsening of the situation makes it even more urgent to relaunch the political process on the nuvasive -- on a new basis in order to put an end to these

interminable calls, which are in a state of deadlock, and make the two state solution a tangible reality. to this end, the security council must get more involved in order to save the two state solution, living in peace and mutual respect. the perimeters for this solution are known to us all. in no manner should they be questioned for any reason whatsoever. given this, we call upon the two parties to strive for more to pacify the situation and undertake trust building, confidence building measures. this means that israel must put a freeze on the settlements, must put an end to the attacks on civilians and their incursions into mosques. anddemolition of houses,

the forced displacement of palestinians. in conclusion, mr. president, we repeat our firm belief that it is only through the two state solution -- this is the only firm and realistic solution which can allow israelis and palestinians to live in peace and insecurity. thank you. -- and in security. >> i thank you for your statement. i now give the fourth to the ambassador of the united kingdom. >> thank you for convening this emergency meeting and thank you to jordan for requesting it. it is vital that this council response urgently and effectively to escalating situations such as the one we are witnessing in jerusalem and elsewhere. the british government is deeply concerned at the terrorist attacks and violence that we have seen so far this month,

whether in jerusalem, the west whetherza, or israel, committed by israelis or palestinians, the british government condemns all acts of terrorism and all acts of violence. as others have said, this violence is doing untold damage to people on both sides. so far this month, seven israelis and 32 palestinians have been killed. over 4400 people have been injured, according to the palestinian society. these figures should give us all pause for great concern. -the immediate priority must be a swift and to the violence in a rapid de-escalation intention. i am pleased that council members have sent this clear and unambiguous message today. the israeli and palestinian people deserve to live in peace and security without fear of attack. those breaking the law on either side should be subject to

prosecution. innocent civilians must be protected. let us all call on the israeli and and palestinian leadership to take immediate steps to de-escalate tensions and avoid any action which could threaten to exacerbate the situation. the current violence began following the heightened tension we saw last month on the temple mount. this is a somber reminder of the delicate balance in the jerusalem, and the need to respect the sensitivity over holy sites. it is a vital that the long-standing status quo, in respect of access to the temple mount, and other historic sites, is preserved. remainsish government in close touch with the israeli-post any and and -- with the israeli, palestinian, and jordanian partners. stressed that security restrictions must be lifted

immediately. we will continue with these calls and take other council members -- and hope other council members will join us. if we are to find our own solution to its crisis, the israeli and palestinian people need to believe, really believe, that there is an alternative to conflict. the current cycle of violence points to a much deeper despair at the lack of prospects for a political and to the conflict. the violence takes us further away from medical. the political leaders on both sides, and this council, must make clear that the two state solution is not just desirable, but essential. there is an urgent need for practical improvements on the ground if we aren't to -- if we are to sustain liability -- if we are to sustain the viability of the two

state solution. as ever, the united kingdom stands ready to work with this council and other international partners to address the current crisis through private diplomacy, statements and resolutions, and through any other route that can help achieve a meaningful, lasting solution. such a solution is long overdue. next week is the 70th anniversary of the united nations, d68 of the past 70 years, the u.n. has been trying to find the answer to the situation in israel and occupied palestine territories. we must keep striving to achieve a two state solution. the alternative is the violence and despair that we are addressing today. thank you. for'd like to thank you your statement. i now give the floor to the ambassador of chile. >> i would like to thank the

department of political affairs for his breathing. i also thank jordan for requesting this meeting, and to the spanish presidency for convening the meeting. mr. president, we condemn in the strongest terms these attacks that taken place over the past week in jerusalem, the west bank, and gaza strip, that is taken the lives and injured both israelis and palestinians. it is essential to stop this climate of polarization. we call to palestinian and israeli authorities to preserve peace. along these lines, we think it's up to respect the agreements and practice regarding to the use to the native mosques. continuing policy of

settlements contributes to undermining all efforts. we are also worried about those actions by the authority infringing minimum standards of due process and the right to a fair and dignified treatment. we continue to believe that the two state solution is the best alternative, offers the best prospects for both peoples to live in peace. we would like to repeat our condition that would not be possible to continue negotiation without due consideration to the aspiration of palestinians to exercise the right to self determination and the right of the palestinians to guarantees to the people to reopen the doors of dialogue and work to achieve peace is a challenge we cannot shorten. the council should contribute to this and generating the conditions that foster trust among the parties. we believe it's important for the international security council to support any

initiative that leads towards a peace process, based on the parameters and specific timeframe. with this in mind, we support proposals that strive to lay the groundwork for consensus. thank you very much. i give the floor to the ambassador of venezuela. >> known as the city of good neighborhoods, this weekend, our c-span cities tour, joined by time warner cable, explores the history and literary life of a flow, new york. on book tv, we will visit the mark twain room. -- literary life of buffalo, new york. pages of the original handwritten manuscript of "the adventures of american." huckleberryes of finn." >> they were desperate because became across the atlantic.

it took one relative to find about plentiful jobs along the waterfront, working in a grain elevators or mills. word would come back to ireland, do you want to come back to buffalo? if you wanted to come rich, you would have to study employment. they came to this neighborhood called the first word. it got its name because when buffalo was first created in 1832 as a city, it was divided into five political wards. in this area along the waterfront it has always been the first word. >> on american history tv, onset of her six, 1901, president william mckinley was assassinated in buffalo. we will tour the buffalo history museum, exploring the mckinley exhibit that features events around his death and the gun used to shoot the president. and discover the history of the buffalo waterfront and how it's adapted from the nation's grain center to modern reader element. -- modern redevelopment. >> this is a collection of grain

elevators along the buffalo river, originally built for different companies, today all owned by rick smith on ohio street. the site is regenerated for many purposes, for art, for music, we do history towards. -- we do history tours. there are three ethical productions, opera, the readings, all sorts of different uses. -- there are theatrical productions. >> see all of our programs from buffalo today at six ago p.m. eastern on c-span two book tv. and sunday afternoon at 2:00 on american history tv on c-span3, the c-span cities tour, working with our cable affiliates and visiting cities across the country. >> on tuesday, the supreme court ordered -- hurts the oral art made in hurst versus florida, which argues that death

sentencing progress is unconstitutional. the jury recommended death in a 7-5 vote. the judge in the case went over the jury's recommendation. hurst's lawyers argued that he defended's intellectual disability disqualified him, and the judge should not have made a ruling on the death penalty. this is about one hour. the argument nest in -- the argument next in hurst vs. flor ida. >> may it please the court, urstr florida law, timothy h will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death. that violates the sixth amendment. in florida and florida alone, what authorizes imposition of

the death penalty is a finding of fact by the court of in aggravating factor, a finding that the trial judge makes independently and "notwiths tanding the jury's recommendation as to sentence." the state here contends that juries make implicit findings that satisfy the six amendment, which the trial judge simply ratifies. that is wrong. whatever the jury's recommendation might imply about the specified aggravating factors, the florida supreme court has repeatedly rejected the notion that the jury's verdict is anything other than advisory. lorida law interests -- florida law entrusts the finding of facts to the judge alone, which can be based on

aggravated's that the jury has never heard or presented with. >> was there ever a case in which the jury found aggregators -- aggravators and recommended the death sentence and the judge reversed that finding? be.here amay well this is about death eligibility, not sentenced selection. jus. scalia: either way, is a case in which the jury did not find an aggravating circumstance, but the judge did. >> we never know what the jury said about any aggravating circumstances. the only thing that the jury tells the judge is, we recommend life/death by a vote of x/uy. scalia: they cannot recommended death unless they find the aggregator. >> no, as a matter of state law that not correct. they cannot recommended death unless seven of them each believe that some activator is satisfied. but the florida supreme court,

and this is another problem -- the florida supreme court has recognized that where to aggravators or presented -- two aggravators are presented, it's impossible to know whether a single majority agreed on a simple aggregator. maybe three jurors find that, or an officer was also killed, or within the commission in the course of another company. in a typical case, finding the murder was heinous. you have no idea whether the jury as i called me the termination or there were 12 different reasons. >> mr. chief justice, florida is that does not

require or permit the jury to be .old that it has to agree and in all states its unanimous, but cannot be told that a majority has to agree as to the existence-- >> taking it out of the death penalty context, that is true of every jury determination. you could say the person didn't commit the offense because his alibi was good or because summary else did it -- somebody else did it, or 12 different reasons why the didn't think he was guilty. there is a need to be agreement by the jury on a particular basis for the verdict. >> we are talking here about elements of the crime. as this court explained, the existence of a statutory aggravating factor is an element

of a death eligible crime. can anybody imagine a world, which would be the analog in florida, if the jury at the guilt-innocence stage, like a shoplifting trial, were told, look, i'm the one who will decide whether the defendant is or isn't guilty as a matter of law and eligible for punishment. what'd like your input on you think each of the specified elements is or isn't satisfied. nobody would stand for and workmanlike that. -- nobody would stand for and argument like that. >> are you sure that if you have a crime that can be satisfied by various elements, the jury has to agree upon the certificate element that satisfies it? >> if they are distinct elements, and this implies the point that the state is raising -- if the state consistent with

long historical tradition in a finding of equal culpability chooses to permit a particular element. to be satisfied either by premeditation or by felony murder, that is fine. but that is not the florida system. florida requires, as a matter of law, any supreme court of florida has says this over and over again, that the defendant is eligible for death only if the trial judge finds as fact beyond a reasonable doubt that a particular statutory activator exists. -- statutory aggravating exists. i submit even if that was not , in light of a 150 year history of states, either felony murder or premeditation, that

combining those two elements did not satisfy the death penalty -- none of that is here. this is a question of the six and eight amendment. said that thehas jury can just decide some muddle of aggravation. they don't degree -- don't agree on a specific element. i think that would violate the eighth amendment. >> i would think just the opposite. the necessity of finding the element of the crime goes all the way back into the mists of history. this necessity of finding and aggravating factor, we made it up, right? that's just recent supreme court law. if either one of them should be satisfied able to buy finding the generic conclusion rather than agreeing upon the particular species and issue, i

would think it's the latter rather than the former. >> justice scalia, i'm reminded of your separate opinion, i think it wasn't walton versus arizona, where you are choosing between two things that you didn't particularly like. one of them was the fact that the court had made, recently or beyond amade a finding reasonable doubt a factual finding of a specified, aggravating factor, an element of the crime. and whether it is recent, whether the court should or should not have done it, it has. and it is just like any other element of the crime. i think the other thing i would have said is, the florida supreme court, and i refer the court to the bevel case, the florida court has said that the 16 aggravating factors that makes one eligible for death are vastly incommensurate in terms

of relative levels of culpability, opposite-- >> i was on the court at the time of ring. -- i wasn't on the court at the time of ring. is that titled to greater weight rather than great versus georgia -- greg versus georgia? >> i would not be to assign weight to either. ring is certainly predicated on greg if greg hadn't decided there has to be a determinate specific applet reviewable narrowing of sentencing jury's discretion. ring without become up because an aggravating factor would not be an element. >> assuming we agree with justice scalia, you don't really need unanimity.

?ith this still be good law case that said we needed a unanimous jury, but 9 out of 12 is okay. do you think 7 out of 5 is okay? >> i hope it was clear from our brief that seven out of five is not ok. it doesn't require this court to rule-- >> we are not required to do anything. we can just say is not the functional equivalent. shouldn't we overrule it? >> for the reason stated in our brief, you should overrule it. and particularly in the 8th amendment context, when the question is death, the jury should be unanimous. there is no other state that permits anyone to be sentenced to death other than a unanimous determination by the jury. and the state of florida

requires unanimity for shoplifting, just not for death. it requires anonymity on the other elements of the crime. often talk up-- >> wait a minute, they unanimity for a conviction, right? >> yes. >> they don't require it on the stenlts that's quite different. ? and justice scalia, leave aside point in amendment the brief, this is all about the eligibility, not the determination of what sentence applies and you have held that specified e of a stattory aggravatering factor is a condition, it is an element of capital murder and

it is by statute and florida supreme court decision an element of cap tal murder in florida and appodaca itself, just as justice thomas pointed out in mcdonald, an extraordinarily unusual case, even there six justices indicated this a simple majority rule would not pass muster. when -- we need to -- when an assignment is made to a jury in a case to decide beyond a reasonable doubt the existence of an he will ement, however the state defines an element, certainty tutory that the jury performs that out, on the as we point the eighth amendment would

certainly be violated under caldwell because florida juries are told that they do not determine dealt -- death eligibility and the state simply can't have it both ways. either the jury is correctly old that their decision is merely advisory, or there is an instruction given as in caldwell because as in caldwell, it, quote, minimizes the jury's sense of responsibility for determining the death penalty eligibility. >> do we just treat as irl -- irreparably -- irrelevant what was the aggravaters, the brutality of the murder and that it occurred during a robbery, those were obviously existent, is that not so? >> i think it's not so.

the heinous and cruel aggravater can never be obvious much the state isn't une ruling on that. the state made a choice as to robbery. they didn't even indict hurst for robbery. sentencing jury was not even instructed on the elements of robbery. this element of harmlessness was never raised from the sentencing proggedse onward including the brief and op -- brief in opposition in this case, this. red brief and even there the red brief is sarg -- arguing that there was a fatal concession. nevertheless, there is evidence in the record from which a jury could find that timothy hurst, although he was found guilty of first degree murder, did not actually commit the robbery. the jury was told that to find the visit doctor -- existence of the felony murder

aggravater, that it had to find that the murder was committed while he in the course of him committing a robbery -- all of the physical evidence in this case that relates to the robbery, the bank deposit slip, nfl oney, the bank deposit -- envelope and a piece of pabe in smith's hand writing toting up the deposits were all found in smith's pozzession. though it's not this court's normal responsible to decide if something was harmless, i think if there were a me -- remand on this count it ought to be remanded to the state court not only to determine constitutional harmlessness but whether there ways waiver by the state in its deliberate

choice never to mention this either to the second sentencing jury or after. >> mr. waxman am i understanding the case properly? e informant who had all of the physical evidence was the main identifier of the definite, correct? -- defendant, correct? >> correct. there was an eyewitness from across the street who testified he saw somebody go into popeyes and he positively identified the defendant. i believe there was another cooperator who backed up smith's testimony. >> so the defendant claimed, however, that this informant was the one who did the claim -- crime. cot jury under the evidence that existed have concluded that they both did it? >> certainly. >> and that's why it's debateable whether it's

harmless? >> yes, in fact -- >> because what makes it an aggravater is if he was the one who actually did the killing. >> well, that's what the jury was instructed, that in order to final the felony murder aggravater it had to find that the murder was committed in the course of him committing the robbery. >> personally? >> yet now, the statute, the actual aggravater different but that is what this jury was told the >> mr. waxman, can i give you a hypothetical state system? this is a two-part question. you tell me if it is consistent with the sixth amendment and if it is what makes this case different, ok? so my system is that a jury, whether in the penalty phase or in thele guilt phase, has to make a determination of an aggravating factor, ok? but once that's done, once the

jury decides on the aggravating factor, the judge can do whatever she wants. factors, can adding reweigh aggravating factors as compared with the mitigating factors, any of that but the judge has to leave alone the aggravating fact ar -- factor that the jury finds. judge can't give death when the jury finds life and can't throw out the jury's factor but as long as that jury makes that vag -- aggravating factor determination, the judge can do anything. is that stint with the sixth amendment? >> ok. you're asking only about the sixth amendmentnd not the eighth? >> yes. so the -- so just to be sure that i'm specifically answering your question, if the jury is told you must find for the defendant to be eligible to -- for death you unfortunate --

must find yard -- beyond a reasonable doubt at least one of the statutory aggravating factors and i would also say for prps of the sixth amendment you must be unanimous and the vote must be at least 10-2 and the jury does so find, and you do have the belt and suspenders system the court is positing here, that ok, i'm the one what he is can weigh it, eligible but the judge can say nonetheless i'm give life. there is nothing, no violation of the sixth amendment when that happens. the question is, in this case, when the sentencing jury has concluded its work, and i'm assuming in a case where there is not a conviction for a prior aggravated felony, when the

sentencing jury has concluded its work, is it -- is the defendant eligible for the death penalty under state law, yes or no? and in florida the answer is unquestionably no. of the e knew that 12 jurors found the robbery aggravater here, there would be a ring violation just as if we knew that 12 of the jurors found that he had killed the defendant in this case but they had been told "i just want your input on this because i, the judge, will decide. " >> is that what makes the difference then in the end? you're saying that the jury has to be specifically told that that's what it's doing? you're saying a necessary part of a constitutional system for the jury to be instructed, that it has the responsibility to find the aggravating factor

that serves as a precondition to death? >> at a minimum, if in fact the jury is performing that function, it cannot, at least in a capital case, told that it is not performing that function, that its verdict is only advisory. > hold it. if the judge -- if you decide on death the judge -- judge is going to review it and the judge has to power to sentence to life? >> if -- there is no constitutional violation -- our view and this again is justice breyer's eighth amendment point, which we endorse, is that capital sentencing always has been and as a matter of constitutional law should be done by a jury. we're not arguing that other sentences have to be jury sentencing. and so if a jury says it's death and the judge says well, i disagree, i'm only going to

sentence him to life, there is no constitutional violation. >> i'm trying to understand the limits of your argue aument that what was done on -- under the florida statue diminishes the jury's sense of responsibility their sense of responsibility will be nished to some degree if they know that their verdict is not the final word. isn't that the case whether they are told you make a recommendation and the judge decides or you impose a sentence but the judge can im -- impose a different sentence, a lesser sentence? they still don't have to batter responsibility of making the absolutely final decision. >> so justice alito, let me separate out what i am calling the selection decision, that is he weighing of ags and mis and the elements where all the elements of capital murder have been found beyond a reasonable doubt by a jury and therefore when the sentencing jury is done you are eligible for the

death penalty, leaving aside the eighth amendment question whether the constitution then equires the jury to make the intensely moral judgment about whether the penalty should be life without parole or death, assuming that a judge can do that, so long as the jury is t told that its input, which is how the florida supreme court has put it, is -- so long as they are not told that it's advisorly, so long as they're told that you as the finders of fact have to find beyond a reasonable doubt that this capital crime was committed which includes the following elements, including one of the two specified aggravaters, the constitution is it satisfied. the caldwell problem is an eighth amendment problem. it was an eighth amendment case and in caldwell, i mean what the jury is told here if, the

system exist as the state possities it, what the jury was told her is far more mislead -- leading than in caldwell. in caldwell they were simply told that your decision is going to be reviewable by the mississippi supreme court and a majority of this court held that that unconstitutionally diminished the jury's responsible. here the jury was told over and over again and consistent with florida law that your judgment is merely advisory, i will be the one to make this determination. and either if that isn't -- that does appear to be the system, that violates ring. if it isn't the system and if somehow it can be argued that the jury is making implicit findings ofing avation --ing a taition --ing a rah

left -- writ large, that say plain caldwell problem. may i reserve the balance of my time? > you may. >> mr. winds sore? -- winsor? if it please the court, florida' haw was constitutional before ring and remains constitutional. the legislateure has determined that the elements necessary to make a defendant visible are -- eligible for the death penalty and what the other side calls advisory, included within it, the court has recognized in united states versus jones about -- that the jury has ound one or more aggravating

circumstances. >> i'm sorry, how is that what -- >> i agree with the other side that there is a difference etween the selection and eligibility. once a defendant is eligible because they have found all the necessary elements, once that happens it does not implicate ring at all. >> could you tell me how this is different? just like in the arizona case there had been precedent by this court that arizona law had een constitutional -- unlike arizona,, with florida, every judge that has looked at it, not one of them has said that they believe it's constitutional. even the courts affirming on the bves a prior precedent and you have a little less than half the court directly saying it vilities -- violates ring,

so what is the jury finding when it says 7-5? even when it says a murder was committed? felony murder wasn't -- it was charged but we don't foe if they found the robbery, right? >> at the guilt phase they convicted of first degree murder which could have been either felony murder with the underlying robbery or premeditated murder. >> how do we know which one they picked? >> our position is that he became eligible at the sentencing phase when the jury made its decision because the jury was instructed if you determine no aggravating circumstances were found to exist, it must recommend life life -- life. >> but you do agree it requires unanimous truth? >> it did -- does not require unanimous 2r50ug9 >> simple majority?

even a functionally equivalent unanimous jury finding those aggravaters? >> i'm sorry? >> we don't have a unanimous or functionally unanimous jury finding thoseing a -- aggravaters? >> it's the 7-5. there are two things that two on when a jury finds someone should be sentenced to death orn. first the jury looks and determines beyond a reasonable doubt whether the stirksexifment then they get into the sentencing process where they wlay the factors they find if they do find them and -- >> i'm sorry. the jury is not asked to find an aggravater. >> i'm sorry? >> the jury is not asked to find an aggravater. > it is, your honor. the jury cannot return --

>> at the trial? >> i'm talk by the sentencing phase. >> he's -- you're supposing that the jury comes back at the sentencing phase and says we recommend life. and the reason would be i suppose that nobody found an aggravater. can the judge then give deathing? >> no. >> after reading about six florida cases it suggested to me that as a matter of florida law yes, the judge can sentence to life. >> let me be clear. at -- as a matter of statutory law it is permitted. we acknowledge under ring that it would not be permitted. now, you could have a situation -- >> i missed the last part. the jury comes back. they say life. >> right. >> and we know through mental telepathy, so i guess the judge doesn't, that the reason that they did that is no one found

an aggravater. my simple question is as a matter of florida law can the judge impose the death sentence? yes or no? >> as a matter of florida statutory law, yes, as a matter of ring, no. >> it's federal law. ring is over. so you say the answer is now no? >> with this caveat, justice breyer. >> because you agree that this case is like ring and therefore ring would apply -- not this case but any case in which they recommend life. >> not this -- >> i'd like to know your caveat. i'm on pins and needles here! [laughter] >> there are multiple ways a defendant in florida can become eligible for death. one is in this case where it's determined as if the sentencing phase that the jury finds a multiple recommendation. the other is prior to the

stenks phase where they have another violent felony conviction. if a person murdered two people and was guilty of double murder, that person has found by virtue of that verdict to be eligible for the deal. so in your hypothetical, justice breyer, if that sentencing jury recommended life, the judge could override it without violating ring. i will tell you that in that circumstance the judge would face an exact:00 -- exacting standard and no judge has overridden a jury's decision ing. >> so if a jury came in hung -- >> i'm sorry? >> on the sentence? if the answer instead of 7-5 was hung. >> if the -- >> could the judge then impose

the death penalty? >> not in this situation, yurns, because that would result in a life recommendation. a 6-6 vote is tantamount to a life recommendation and the judge could not rely on that if he was -- were relying on the jury sentencing findings to satisfy ring. even if he weren't, like i said shall it's an exact:00 -- exacting knox state standard and the judge would be reversed for overturning that unless the appellate court determined that no reasonable jury in those circumstances could have imposed or recommended life. it's been since 1999 since any judge actually overrode a life recommendation. >> just so i understand it, you are saying that it is possible but under florida -- that under florida law the jury could -- would not find the existence of an aggravater and then there are different ways that this would come out, the hypothetical was a hung jury,

that the judge could then proceed to find an aggravater and impose the death penalty. you say that isn't happening, but theoretically this could happen? >> only -- that could not happen consistent with ring, yurns, -- your honor, unless there were some other finding that established the eligibility for the 2k5e89 >> meaning that there are certain applications of the flookt lay -- law that would be unconstitutional even in your view? >> that hypothetical we've explored. again, with the existence of at -- another aggravater -- >> but we don't sit in jufpblet the theoretical scheme that florida tazz dash has set up, do we? >> no, your honor. >> don't we have to ad judge that there was unconstitutionality in this case? >> that's true, your honor. >> can i give you another

hypothetical stance, notwithstanding that we don't sit in judgment of hypothetical stances? suppose the judge -- the judge has this whole separate hearing, right, in which other things are presented to him and says you know, i don't actually agree with theing aggravating facts that the jury found but i have my own and i'm doing the weighing and i come out in favor of death. i suppose you would say that would also be an unconstitutional application? >> no, your honor, that would constitutional the there is a record overt years where the court has determined -- >> yes, quite right but hype -- i'm hypothesizing a case in which the jury finds an eligible marker but the judge throws that out and substitutes

his own. you say that would be constitutional? >> the judge wouldn't be throwing it out. >> no, he does throw it out but says i'm subs teuting my own. would that be all right? >> it would. just like if the judge believed he were sitting in the jury that person may have aquitd that person of the double murder. in that instance the eligible was determined notwithstanding that he had -- had been the decision maker he would have maybe decided differently >> i have to say that answer surprises me because the death sentence there is not at all a function of the jury's eligibility finding. the judge hozz -- has tossed out that eligibility finding and substituted his own, which then leads to the death sentence. so how could we say that that's possibly constitutional under ring? >> the point in ring was to ake sure no person was subject

to a greater penalty than they bargained for when they did the crime. in your case there is a jury finding that there was a aggravater -- >> the judge says that that was tterly irrelevant to his decision to impose death. >> but at that point the judge's determination is separate from the selection point. he judge is exercising the dis cregs to sentence -- >> that didn't happen here, did it? >> no, ushs. -- your honor. >> well, the thing is you can't really tell whether that happened in a wide variety of cases. this goes to the question of that the jury doesn't have to actually find specific things only the judge have -- has to find specific things. you often are not going to be able to tell whether the judge's sentence is based on the same aggravating facts as

the jury. >> but it doesn't need to be. nce an aggravater has been found, the defendant is eligible -- >> even though the jury is told, now, whatever you say it's advisory, it's not binding? you have made a findb of an aggravater but it's not a finding finder of an aggravater, the jury is told that whatever they say is advisory. doesn't that make a difference? >> no. what the jury is told that its ultimate recommendation is not binding on the court and that's true. that's one of the great benefits of florida's system. the system was developed in response to this court's decision in fuhrman. it's said that florida's system has -- provided additional benefits -- >> that was before ring. >> that was before ring. we're not contesting that ring -- ring would require a jury finding of those elements.

but once the jury has has made its recommendation, even if it recommends death, the judge can override that, on -- for any reason. it makes it --? i just want to -- i'm sorry -- >> is it clear to the jury that they are the last word on whether an aggravater exists or not? >> what the jury is told is that they cannot runner-up a death recommendation without finding an aggravating circumstance. >> then they are also told that the judge is ultimately going to decide whether your recommendation stands or not. ? the judge is going to ultimately impose the sentence. that's true and both true under caldwell -- >> shnd -- shouldn't it be clear to the jury that their determination of whether an vagvator gifts -- exists or not is final? shouldn't that be clear? >> well, i don't think so, your honor, because determination of the aggravater doesn't yield

unless the ntence judge feels in his or her opinion -- >> i'm talking about what responsibility the jury feels. if the jury knows that we don't -- if we don't find it an aggravater, it can't be found or if we do find an aggravater it must be accepted, that's a lot more responsibility than just, you know, well, you know, if you find an aggravater and you weigh it and provide for the death penalty, the judge is going to review it anyway. >> i'm not sure that's an accurate characterizeation of what goes on much the judge must -- must september aggravater -- it has no purpose other than to determine the glibblet the weighing and if the judge determines that the death sentence is not appropriate for whatever reason, then the fact that the jury found an aggravating circumstance is shall -- >> suppose in your earlier

hypothetical, the judge found during r p occurred the course of a robbery and it goes to the judge and the judge says there is simply no evidence to support that but i find another agriculturing -- -- be aggravating factor, then it goes to the judge? >> that's a little different. first of all, the recommendation doesn't specify -- >> but this is my hypothetical. >> which honestly seems like the same. >> well, i think that -- i think the difference is, respectfully, his included the finding that the judge finds no evidence to support as opposed to just disagreeing. >> what would happen there? >> if you have a situation, and let me make sure i'm limiting the answer to the situation here the state is recommending

the death penalty -- if the jury made a speck finding as to a specific aggravater, they wouldn't be instructed on if -- it but if the judge concluded that there was insufficient evidence, that probably would not be permissible. >> they're two good analogies in other areas of the law. one is robery. force or threat of force. no one ever needs to ask whether six members of the jury thought there was a theat -- threat but no actual or actual but no threat. on the other hand, imagine a normal sentencing case. the statue -- statute says you get aggravated punishment if you had 50 grams of cocaine. the jury finds he had 50 grams of cocaine. no,