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, sorry, the statute says

aggravated sentence if 50 grams of cocaine or meth. the jury finds he had 50 grams of cocaine. aprenzi hink under that a judge could say i'm going to give you the aggravated sentence because i don't believe there was cocaine but i do believe there was meth? >> that may well be right and may be why the jury is not asked to find specific -- >> but we do know that the judge here, now still, your having conceded ring where the jury says no aggravating factor, we know that the jury can, if the jury finds aggravating factor x, have death on a completely different aggravating factor that the jury never thought of, namely y. we know that. now compare that to the hypothetical of cocaine and

th and then we have aprendi, which i disagree with still. >> i think your honor in the cocaine and meth example, i believe the court would look as they can did in jones and say is the legislature sitting this up as disteekt offenses or one that can be satisfied by either cocaine or meth? if the latter, the jury would just be instructed to find one or the other without any specifics --? i'm sorry the do you think a 7-5 recommendation is finding an element of chiropractor that makes you eligible for the eath penalty by a unanimous or functionally equivalent unanimous jury? >> we do, your honor. and let me say -- >> then what do you do with the statement in our case law that says a simple majority is not a unanimous jury? >> well, we don't say that's a unanimous jury. let me step back and say the

7-5 vote by the way is not necessarily five votes that there was no aggravating circumstance. there's two things that go on in the jury room. one, they decide whether there were aggravating circumstances, two -- >> they don't agree with which one so we don't know there -- whether it was premeditation or robbery. >> i'm talking about in the sentencing phase now. >> right. >> so 7-5 could well mean all 12 found a robbery and all 12 found heinous and cruel. >> what buzz -- does the 7-5 tell us? >> that a majority at the minimum found beyond a reasonable doubt that the state had proved the existence of one or more aggravating circumstances. >> not the same one? >> not the same one. and back to justice breyer's point about the cocaine and the the you look at what

legislatures determine as the elements. we know in florida state law to take someone not eligible for the deam -- death penalty and make him or her eligible is the existence of one or more aggravaters. it's like shadd versus ars where you can't say if the jury found there was premeditation or felony murder. in fact that was the case at this defendant's guilt phase in 1998. the jury was instructed they could return that verdict either by finding premeditation or felony murder. i think to answer your question about whether they all need to be the same or not would depend on the legislateure. >> you believe that a simple majority is a jury that unanimously or functionally unanimously finding that

element? >> they're spornle finding it beyond a reasonable doubt. and the court in appodaca -- >> that was 10-2. does 10-2 automatically mean that 7-5 is ok? >> not automatically but i think if you look at appodaca, they were rejecting the same argument that this court is being add -- asked to reject, about the long history of the nammy. but the 7-5 is not the same kind of jury verdict you have because of this judicial backstop. you still have the judge coming behind that jury, would unlike at the guilt phase where he must accept the jury's findings unless they're not supported by evidence, he or she can disagree for any reason or give mercy for any reason and that happens a lot. we cite cases in our brief

where a man was convicted of murder in a horrible sexual assault and by virtue of those two convictions was necessarily eligible for the deal. -- death penalty. the judge said no, i'm going to sentence him to life. so this court, you know, this gets back into the jury versus judge sentencing but there are real benefits associated with jeremy bloom sentencing. if you go back to profit, when this court first upheld florida's stam of cap tal sentencing because you're not going to have someone's life or death being determined exclusively on the emotions of a jury. >> can i suggest a hypothetical? let's say that there say jury and it's been presented with evidence that the murder was for pecuniary gain, which is one of the aggravating -- aggravating factors and the jury comes out with

recommendation of death that was the only thing presented to it so you know the jury has made the death penalty recommendation on the basis of pecuniary 2k3w5eu7b89 then it goes to a judge who said i don't think there was enough evidence of that but i find that the crime was heinous and now i'm going to sentence the person to death. you say that that's fine, is that right? >> i realize it's a hypothetical but let me tell you why that couldn't happen in florida. a judge would not instruct the jury on an aggravating circumstance for which there was not sufficient evidence to find that so your hype hypoal would not happen. >> well, you know, no. he heard more evidence because there is a whole new hearing that he has and now he's considered it more thoroughly and he thinks no, i don't agree with that any more but i think

it's heinous so that would be fine. >> again, that's not this case because there was no additional --? yeah, yeah, yeah. >> but if the judge found that there was no evidence of any -- >> i'm throwing out the jury's aggravating factor but i'm subs teut outing my own. i thought you told me that was constitutional under ring. >> it depends on why you are throwing itout if the judge finds at the guilt phase that there is insufficient evidence to find any element, he would not rely on that. >> let me get on to my question because i think you answered this one already. the appeal is focusing now only on what the judge has owned -- found, isn't that right, under florida law? if the appeal came in and said there was insufficient evidence, the appeal would only be as to the judge's findings

and not at all to the jury's? >> if i understand the hypothetical correctly, someone is convicted, has a recommendation and death sentence and is appealing to the florida state supreme court? >> and he says there was just not enough evidence of all these aggravating factors. it connell possibly be that he was challenging the jury snaps >> the judge's aggravating factor would be detailed in a written order but -- >> the whole appeal process suggests that the crucial death eligibility determination is being made by the judge because that's the only death eligibility determination that the appeals court is ever going to review. >> well, i think that's -- that gets to another benefit of florida's system is that they do have this to review. there's been some suggestion of -- >> they have something to review. the problem is that it's the judge's thing they're reviewing, not the jury's and that's a sixth amendment

problem. >> i don't think it is, any more than at the guilt phase when he appeals and there was an examination of the evidence and they didn't know whether the jury found on felony murder predicate or on first degree murder. they're reviewing the evidence and the -- the convict and the evidence that sustained it. >> to what degree here is there a real dispute about the presence of the two aggravating factors? >> there is none, justice alito in, my view. i know there was argument a moment ago about the suggest that someone else committed the crime. we crited the initial brief in supreme court, they id he doesn't question the seriousness of the aggravaters either. hit focus as on proportionality

review, which is not at issue here but is another benefit of the florida state. >> can i ask you a couple of questions on this? >> yes >> number one, when ever have we said that a jury waiver on an issue is based on the lack of a challenge by a defense attorney? don't we require waivers of jury trials to be explicit and by the defendant and him or herself in? when someone is waiving the jury trial altogether, absolutely and there would be structural error even if there was no objection. ut the court has held that aprendi was subject to harmless error. >> we take plebty of appeals where people are saying assuming this state of facts, i'm entitled to x and then when

they go back down they argue that those, that thatsumption is wrong. why isn't this the same? >> we cite other portions where they had, excuse me, acknowledged that, back in the sentencing round in the first go-round. but to follow up, justice alito, about the existence of a doubt, the florida supreme court found that both clearly existed at the post conviction. they sent it back for resentencing not because of anything having to do with death eligibility or the establishment of aggravaters, they sent it back because there was insufficient effort to -- >> was there an appeal in florida where an advisory jeer -- jury was not given a proper instruction and a resentence was ordered for that reason? >> has there been a florida supreme court reversing a death sentence for -- >> an improper instruction to the advisory jury. >> i'd be surprised if there weren't, your honor, but i

don't know. i will look at that. getting back to the, to the admission, the evidence is clear, there is no question that there ways robbery here, that this was heinous, atrocious and cruel and which asking -- z -- ask that the court affirm the decision. >> thank you, counsel. mr. waxman, six minutes. >> notwithstanding [inaudible] let me first -- let me go right to justice scalia's question, which is not a hypothetical. although i am happy to answer hypotheticals. your question was, was the jury told and doesn't a jury have to be told that as to death eligibility, the element of the crime of capital murder that it

makes the decision? the answer is, it does have to be told that. it certainly can't be told the opposite. and it absolutely was not told that. it was told over and owe again consistent with the statute that its decision was purely refer and i want to the court to the phlox superdome court's decision in state vess steele, 921 southern, the florida supreme court in steele said first of all, nothing in the statute, the standard jury instructions or the standard verdict form requires the majority of the jury to agree on which aggravating circumstances exist. under current law the jury may recommend a sentence of death where four jurors believe only that one aggravater applies while three others believe that only other aggravater applies because seven jurors believe

that at least one aggravater applies. florida goes beyond that. , and the s unlawful supreme court of florida has said, to require, to ask the jury, the sentencing jury, to provide a special verdict that in any way indicates that -- what their, quote, input is on the sentencing factors. again, steele at page 546. specific jury findings on aggravaters without guidance about their effect on the imposition of a sentence could unduly influence the trial judge's own determination of how to sentence the defendant. the trial court alone must make detailed findings about the existence and weight of aggravating circumstances. >> is that post-ring? what's the date of it? >> yeah, it's post-ring and the

court also healed -- held that ring didn't aplimente -- apply. it has no jury findings on which to rely an in fact the court also explained late fer the same decision and also in its decision in frankly that florida, quote, florida bars the special vrt -- verdict precisely because requiring specific jury findings on aggravaters without guidance about their effect would harm the trial court's independent determination. now, counsel, my colleague on the other side here says that, well, there would not be a statutory problem but there would be a ring problem if we knew that the jury found that no aggravaters existed. so how can ring be satisfied when we have no earthly idea what the jury found? it could be, as in this case as

steele acknowledges, 3-1 and -- three for one and four for the other. as to the, i think. hypothetical question that just -- justice kagan was asking, so you -- so, you know in, the circumstance, how much leeway does the judge have to make his or her own decisions on the death penalty, the be florida supreme court has sbeskly -- specifically allowed the death penalty to be imposed and a determination of eligibility to be made based on evidence that was never prernted to the sentencing jury and based 0 an aggravating factor on which the sentencing jury was an replied. and the notion that there hasn't been a life override since ring is an interesting fact but this court, in this court's spaziano and dobber decision, that's exactly what happened. the jury said we want life.

the judge said i'm hearing independent evidence and you're getting death. now, as to the supposed concessions -- confessions in this indication, i'll rely on our brief but the notion that the lawyer said this is a two aggravater case is certainly true. there were two aggravaters charged and we know the trial judge found that two were satisfied. this defendant has been making the ring argument since before ring was decided. he raised this as an aprendi issue at the very first trial. he asked for a bill of particulars for the state to indicate which aggravaters it was going to rely on and he was denied on the ground that aprendi doesn't apply. even, again, the central ring problem in this case, 9 central sixth amendment problem in this case, leaving aside the indetermineacy of 7-5 and maybe three for one and four for the

other, is that when a florida sentencing jury finishes its work, there is simply no question. the defendant is not eligible for the death penalty, only the trial judge can do that. thank you. >> thank you, counsel. the case is submitted. [captioning performed by national captioning institute] [captions copyright national able satellite corp. 2015] >> in his weekly address, the president. years ago body, 30 there were 500,000 people behind bars in america. today there are 2.2 million much the united states is home to 5% of the world's population but 25% of the world's prisoners. every year we spend $80 billion

to keep people locked up. now, many of the folks in prison absolutely belong there and our streets are safer thanks to the brave police officers and dedicated prosecutors who put violent criminals behind bars. but over the last few decades we've also locked up more nonviolent offenders than ever before for longer than ever before. that's one of the real reasons our prison population is so high. ever since i was a senator i've talked about mow -- how in too many cases our criminal justice system is a pipeline from underfunded schools to overcrowd jails. and we've taken steps to address this. i signed a bill reducing the 11 -- 100-1 sentencing disparity between crack and powdered cocaine. commuted the sentencing -- sentences of dozens of people convicted under ole drug laws we now recognize are unfair.

we've focused on the worst offenders and pursuing mandatory minimum sentences less frequently. still, much of our criminal justice system remains unfair. in recent years more of our eyes have been opened to this truth and we can't close them any more. good people of all political persuasions are eager to do something about it. over the next few weeks i'll travel the country to visit a community battling prescription drug and heroin abuse, speak with leaders from law enforcement who are determined to lower the crime rate and the incarceration rate and with police chiefs who have dedicated their careers to keeping our streets safe. i'll meet with prisoners woshing to earn their second chance and meet with leaders from both parties who are determined to get criminal justice reform bills to my desk. earlier in the senate, one was

introduced that would reduce mandatory minimum sentences for non -- nonviolent trug offenders and one that would reduce sentences if they complete such programs. i'm encouraged by these kind of bipartisan efforts. not liberal or conservative ideas but real common sense solutions to the challenges we face. we pledge allegiance to one nation under god with liberty and justice for all and justice means that every child deserves a chance to grow up safe and secure without the theat of violence and justice means that the punishment some fit the crime and justice means allowing our fellow americans who have made mistakes to pay their debt to society and rejoin their community as active, rehabilitated citizens. justice has never been easy to achieve but it's always been worth fighting for and something i'll keep fighting

for as long as i have the privilege to serve as your president. thanks and have a great weekend. >> hi, i'm senator pat toomey of pennsylvania. next week the u.s. senate is scheduled to vote on an important bill designed to make our communities safer. it addresses the terrible problem of sanctuary cities. it's a problem one father knows all too well. jim steinly was walking arm in arm with his daughter, kate, on a san francisco peer. suddenly a gunman opened fire, hitting kate and she bled to death. that shooter have -- should never had -- have been on the peer -- pier that day. he was an illegal immigrant who had been previously convicted of seven felonies and deported five times. there acevedo that the department of homeland security asked the san francisco police to hold him until they could

pick hip up but san francisco refused to cooperate and released him. why? because san francisco is a sanctuary estimate that means it forbeds its local police officers from cooperating with frool and -- officials even when they want to. think about how rages that settlement if they had called about any other crime, even violating a trademark, san francisco would have been allowed to cooperate but because the crime p involved illegal immigration, their hands were tied. the local police were forced to release this person and he went on to murder kate. i can't imagine 9 pain this family has endured but sadly, they're not alone. during an eight-month period lastier sanctuary cities across the country released thousands

of illegal immigrants, 1,8006b them later arrested for criminal acts these sanctuary policies are dangerous and undermine enforcement of our immigration laws. please understand that this issue isn't really even about immigration. it's about stopping criminals and keeping our communities safe. like many americans, i support immigration reforms that include opportunities for more immigrants to come to america legally and i don't for a minute suggest that most immigrants commit crimes. in fact the opposite is true. the vast majority of legal immigrants are great additions to america and we should welcome them. but when illegal immigrants do commit violent crimes in our country, they've got to be creasted and deported. that's the law and those who, like the murderer of kate steinly, have been deported previously because of their criminal acts, should never not allowed back into our country.

sanctuary cities undermine ule -- all that. they make a mock erer -- mockery of even modest attempts to deal with our bdly broken immigration system. the murder sheds light on the serious public safety risks that happen when sanctuary cities undermine law enforcement. in response, the house passed legislation should -- this summer with bi partisan support that would help rein in these policied. now it's the senate's tern. -- turn. under the sanctuary policies act, sanctuary cities would lose federal funds if they maintain these dangerous policies. we have to take this step in order to get these cities to do the right thing and stop undermining our immigration laws. ur legislation also includes kate's law, which provides a five-year, minimum mandatory

sentence for any illegal immigrant who reenters the u.s. after having been convicting of an aggravated felony or having been twice convicted of illegally reberg is the u.s. this should be a bipartisan issue the president obama's only secretary of homeland security has acknowledged that sanctuary cities are contrary to public safety. after all, we're talking about criminals who the administration has already deemed dangerous enough to remove from our country. the senate will vote on this tuesday. i urge you to speak out and encourage your senators to vote for the stop sanctuary cities act. i'm pennsylvania senator pat toomey. thank you for listening the > tonight on c-span, editorial cartoonists discuss how they

covered the bush administration. here, "san diego union-tribune" cartoonist steve breen draws one of his favorite cartoons from the bush presidency. >> so i drew -- i wanted to have it in -- i couldn't, i am so disorganized and to find cartoons that are 12, 10, 11, 12 years old is like -- so i drew like rumsfeld. he has the small nose. condoleezza rice has the quinty eyes and weird gap-toothed smile and w, right here, he has the bushy brows. beady eyes and a smirky smile. [laughter] and then cheney, he's got like the big forehead, kind -- kind of a pointy nose sort of and a

weird thing down here. [laughter] >> so i drew them like all carved into the side of a mountain and the caption was mount rush-to-war. >> [applause] >> watch that entire event tonight at 8:30 p.m. eastern ere on c-span. >> a signature feature of "book tv" is our all-day coverage of book fairs and festival as cross the 1cri789 here's our schedule beginning this weekend. live from austin for the texas book festival and the following weekend, live in the nation's heart land for the wisconsin book festival in madison and then nashville for the southern festival of books. at the end of november, we're back on the east coast for the boston book festival.

and at the end of november we're live for the 18th year in a row from florida for the miami book fair international and the national book awards from new york estimate just some of the fairs and festivals this fall on c-span 2's "book tv". happenedeenberg, what to you in st. louis? andrew: for a couple of years now, i had been talking to these hackers. brilliant hackers who found for