we think today marks the benefits of that choice. >> "as president himself has acknowledged, iran is likely to use this cash infusion." more than $100 billion in total to finance terrorists." this comes after tehran's most illegal ballistic missile test and after the irgc detained 10 american sailors. a bipartisan majority in the house voted to reject this deal in the first place. we will continue to do everything possible to prevent a nuclear iran." that from house speaker paul ryan. secretary kerry mention his remarks that president obama may have his own remarks about i run later on.

if they occur, we hope to bring those to you here on c-span. >> here is a tweet from an eighth-grade social studies teacher in salem, north carolina. recording student cam interest at the white house. bob goodlatte tweeted "help sally ajnd jessie with their student cam project." "more of our day at the capital. thanks again senators for the tour." a social studies teacher in new jersey tweeted, "interviewing for our project about school

bullying." the grand prizes $5,000. the deadline is generally 20, 316. -- january 20, 2016. for more information, visit our website, studentcam.org. >> on thursday, the supreme court struck down florida's death penalty system. in an 8-1 ruling, they decided florida violated the sixth amendment by allowing judges rather than juries to allied whether criminals should be put to jeff. justice sotomayor wrote "the a suspect protect's to an impartial jury-- it's unclear how the court's ruling will impact defendant timothy hearst, or the nearly 400 inmates facing the death penalty in florida. here is the oral argument in that case from last october. it is one hour.

the argument next in case-- >> may it please the court, under florida law, timothy hearst will go to his death, despite the fact that a judge, not a jury made the factual finding that rendered him eligible for death. the sixthtes amendment alone. what authorizes imposition of the death penalty is a finding of fact by the court of an aggravating factor, a finding that the trial judge makes independently and "notwith standing the jury's recommendation as to sentence." the state contends that capital sentencing juries make implicit findings that satisfied the

sixth 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 that it is anything other than advisory. florida law and trust -- entrusts the factual findings to the judge alone, who may do so on the basis of evidence that the jury never heard, and activators that the jury was never presented with. >> is there ever a case in which the jury found activators -- aggravators and the judge reversed that finding? mr. waxman: there may well be. this is about death eligibility, not sentence selection. jus. scalia: either way, is

there ever a case in which the jury did not find an aggravating circumstance? but the judge did? mr. waxman: we don't know about any of the specifying aggravating circumstances. the only thing the jury told the judge, we recommend life/death by a vote of x vs y. jus. scalia: they cannot find death unless they find the aggravator. mr. waxman: no, they cannot recommend death unless they believe that some aggravator is satisfied. this is another problem here, the florida supreme court has recognized that where two aggravators are presented, it is impossible to know, even if a simple majority agreed on a single aggravator. it is whether the murder is particularly heinous.

it could be for a number of factors. one, the victim is a juvenile. maybe 3 jurors find that. or an officer was also killed, for it was in the course of another felony. in a typical case, the murder was heinous, you have no idea whether the jury as a whole made that determination or if there were 12 different reasons. mr. waxman: mr. chief justice, florida is the only state, the only death penalty state, and therefore the only state that does not require or permit the jury to be told that it has to agree. and in all other states it is unanimous. they cannot even be told that a majority has to agree as to the existence of one to the specified-- roberts: that is true of every determination of a jury.

the person did not commit the offense because his alibi was good, or perhaps somebody else did it. any number or 12 different reasons why the jury 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. but i'd like your input on what you think each of the specified elements is or isn't satisfied. 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 -- in chad, it was

premeditation -- 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 aggravator exists. i submit even if that was not the case, 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 eighth amendment. no state ever has said that the jury can just decide some muddle of aggravation. they don't agree on a specific element. i think that would violate the

sixth and eighth amendment precedent. >> 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 -- should be satisfiable by 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 not, had made a finding beyond a 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 of the predicate of chad. >> 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. with this still be good law? the 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

overrule -- >> we are not required to do anything. we can just say is not the functional equivalent. this is still good law. 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 unanimity on the other elements of the crime. often talk up-- >> wait a minute, they require unanimity for conviction, right? >> yes. >> they don't require it on the sentence, that's quite different.

>> exactly. justice scalia, leave aside our eighth amendment point in the brief, this is all about the eligibility, not the determination of what sentence applies and you have held that the existence of a specified statutory aggravating factor is a condition, it is an element of capital murder and it is by statute and florida supreme court decision an element of capital murder in florida and apodaca 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 element, however the state defines an element, we need statutory certainty that the jury performs that function the as we point out, the eighth amendment would certainly be violated under caldwell because florida juries are told that they do not determine death eligibility and the state simply can't have it both ways.

either the jury is correctly told 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 irrelevant what was the aggravators, 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. it is probably a reason why -- the heinous and cruel aggravator can never be obvious. the state isn't even 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 argument of harmlessness

was never raised from the sentencing process onward, including the brief in opposition in this case, this. red brief and even there the red brief is 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 existence of the felony murder aggravator, 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, the money, the bank deposit envelope and a piece of paper in smith's hand writing toting up the deposits were all found in smith's possession.

although it's not this court's ordinary function to determine 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? the informant who had all of the physical evidence was the main identifier of the defendant, correct? >> correct. there was an eyewitness from across the street who testified he saw somebody go into popeye's 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 crime. cot jury under the evidence that existed have concluded that they both did it? >> certainly. >> and that's why it's debatable whether it's harmless? >> yes, in fact -- >> because what makes it an aggravator is if he was the one who actually did the killing. >> that's correct. well, that's what the jury was instructed, that in order to final the felony murder aggravator it had to find that the murder was committed in the course of him committing the robbery. >> personally? >> yes. now, the statute, the actual aggravator different but that is

what this jury was told. >> 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 the 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. the judge can adding factors, -- can add aggravating factors, reweigh aggravating factors as compared with the mitigating factors, any of that but the judge has to leave alone the aggravating 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 aggravating factor determination, the judge can do anything. is that consistent with the sixth amendment? >> ok. you're asking only about the sixth amendment and 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 for death you must find beyond a reasonable doubt at least one of the statutory aggravating factors and i would also say for purpose of the sixth amendment you must either 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

-- system the state is positing that florida has here, that ok, i'm the one that can weigh it, he is 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. even if we knew that 12 of the jurors found the robbery aggravator 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, be told that it is not performing that function, that its verdict is only advisory. >> hold it. the judge -- if you decide on

death, the 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 argument that what was done under the florida statue diminishes the jury's sense of responsibility their sense of responsibility will be diminished 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 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 the weighing of ags and mis and the eligibility decision, which is 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 requires 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 not told that its input, which is how the florida supreme court has put it, so

long as they are not told that it's advisory, 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 aggravators, 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 posits it, what the jury was told here is far more misleading 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 of aggravation writ large, that is a plain caldwell problem. may i reserve the balance of my time? >> you may. >> mr. winsor? >> if it please the court, florida' haw was constitutional before ring and remains constitutional. the legislature has determined that the elements necessary to make a defendant 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 found one or more aggravating circumstances. >> i'm sorry, how is that what -- when florida law says the judge must find an aggravator? >> i agree with the other side that there is a difference between 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 been 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 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 know 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. >> but you do agree it requires unanimous truth? >> it does not require unanimous decision? >> simple majority? even a functionally equivalent unanimous jury finding those aggravators? >> i'm sorry? >> we don't have a unanimous or functionally unanimous jury finding those aggravators? >> it's the 7-5. there are two things that two on

when a jury finds someone should be sentenced to death or not. first the jury looks and determines beyond a reasonable doubt whether the circumstances exist, then they get into the sentencing process where they weight the factors they find if they do find them and -- >> i'm sorry. the jury is not asked to find an aggravator. >> i'm sorry? >> the jury is not asked to find an aggravator. >> 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 aggravator. can the judge then give death? >> 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. 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 aggravator. 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 sentencing 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 exacting standard and no judge has overridden a jury's decision. >> 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, your honor, 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 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 that under florida law the jury would not find the existence of an aggravator 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 aggravator and impose the death penalty. you say that isn't happening, but theoretically this could happen? >> only -- that could not happen consistent with ring, your honor, unless there were some other finding that established

the death eligibility. >> meaning that there are certain applications of the law that would be unconstitutional even in your view? >> that hypothetical we've explored. again, with the existence of at -- another aggravator -- >> but we don't sit in judgment of the theoretical scheme that florida has set up, do we? >> no, your honor. >> don't we have to 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 the 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 assume you would say that would also be an unconstitutional application? >> no, your honor, that would be constitutional the there is a record overt years where the court has determined -- >> yes, quite right but i'm hypothesizing a case in which the jury finds an eligibleright. but i'm hypothesizing a case in jury finds that eligibility more -- like the udge throws that one out and substitutes his own, you think that would be constitutional? >> well, the judgment wouldn't be throwing it out. >> well, he does throw it out. he just says i don't agree with that, but i'm substituting my own. would that be all right? >> that would be okay because eligibility would have been determined just like if in my double murder example, the judge believed if he was sitting in a jury, maybe he would have acquitted that person of the double murders. the question can't just override

the verdict on a mere agreement. instance, eligibility notwithstanding he was the decision maker, the person was eligible for death. that answer say surprises me because the death a tence there is not at all function of the jury's eligibility finding. the judge has tossed out that eligibility finding and substuded his own which then death sentence. alw can we that's constitution under wren? in your hypothetical, if a jury finds there's an agivator, if there is a jury finding, that person is entitled to the punishment of the crime he or she admitted. >> it's utterly irrelevant to his decision about whether to impose death and he is imposing death based on something that the jury has not found. >> at that point, the judge's

determination is separate from the selection, the judge's exercising discretion to those eligible by a jury to a death penalty. >> you can't really tell whether that happens in a wide variety of cases, and this is actually -- this goes to the question of because the jury doesn't actually have to find specific things. only the judge has to find specific things. you often are not going to be whether the judge's sentence is based on the same ggravating facts that the jury has found. >> but it doesn't need to be, because once the jury has determined there's an aggravating factor or if it's person itted, then the is eligible and the ring is completely finished. unders nothing else to do ring. >> and the jury is now told, whatever you say, it's advisory. it's not binding. so you have made a binding of an

aggravator, but he's not a binding finder of an aggravator. the jury is told that whatever they say is advisory. difference? e a >> what the jury has told us is that its ultimate recommendation and t binding on the court that's true. and that's one of the great benefits of florida's system. florida's system was developed court's se to this ecision confirming that this court has -- florida's system provides additional benefits to you have a t so judicial back stop. >> that was before ring. >> that was before ring and contesting ring would require a jury finding. nce the jury makes its recommendation, even in the recommended death, the judge can override that for any reason, just based on disagreement a ne, which makes it like usual criminal proceeding where the judge could not -- >> i'm sorry. i'm sorry.t to -- on the ear to the jury

last word of whether an aggravator exists or not? what the jury is told is that they cannot return a death finding ation without an aggravating circumstance. >> and we're also told that the ultimately going to decide whether your recommendation stands or not. > the judge is going to ultimately impose the sentence, and that's true. caldwell.th true under >> shouldn't it be clear to the jury that their determination of an aggravator exists or not is final. shouldn't that be clear? >> i don't think so, your honor. ecause the determination aggravator doesn't yield a death sentence unless the judge believes in his or her opinion -- >> i'm talking about what responsibility the jury feels. knows that if we don't find it an aggravator, it can't be found or if we do find an aggravator, it

must be accepted. that's a lot more responsibility just, you know, well,, you know, if you find an aggravator provide forh it and the death penalty, the judge is going to review it anyway. that's an sure accurate characterization of what goes on. it's not that the judge must aggravator e determination has no purpose or determining r than eligibility and then the weighing. if the judge determines that the death sentence is not appropriate, for whatever reason, then the fact that the jury found an aggravating circumstance -- >> in your earlier hypothetical, finds the aggravator during the course of the robbery. therefore, there's death eligibility, and it goes to the judge. when the judge says there's support evidence to that aggravating factor. the judge could go ahead and impose the death penalty?

>> that's a little bit different than i understand justice kagan's point of view. it doesn't specify -- hypothetical.y [laughter] >> to be sure i understand -- thehich honestly seems like same. >> i think the difference is, includes the fact that the judge finds no evidence to support as opposed to excuse me. if you had a situation -- and again, that's what the me make sure i'm limiting the answer to the situation where the state is depending on the death recommendation, which is the as we've saidses, in the brief. if the jury made a specific a specific o aggravator and, again, wouldn't be instructed on the aggravator unless there was sufficient evidence of it at the professional stage, but if the judge concluded this was insufficient evidence, never would have submitted to the probably act, that

would not be permissible. analogies e two good in other areas of the law. the one that supports you is bobrie, force or threat of force. whether six members of the jury thought there was a threat or seven members thought there was actual or no threat. force.or threat of i don't think they're the same. i don't think so. so i support, on the other hand, imagine a normal sentencing case. you get te says aggravated punishment if you cocaine.rams of the jury finds he had 50 grams of cocaine. orry, no, the jury says sentence if he has 50 grams of cocaine or meth. had 50 grams he of cocaine. i don't think the judge could give you the to aggravated sentence because i don't believe there was any this e, but i do believe

was meth. >> well, that would be right and that's one of the reasons the jury is not asked to find specific aggravators. >> but we do know that the judge here now still, you're having jury ed ring, where the says no aggravating factor, we can, if the jury aggravating factor x, ave deaths on a competing aggravating factor that the jury never thought of, namely y. now compare and that to the hypothetical of and we have a h, disagree with i sti still. >> in the cocaine and meth in general, are they setting this up as a state defensive or one e satisfied could b either by possession of cocaine

or meth? ladder, the jury would be instructed to find one or the other without any specific -- 7-5 recommendation is finding an element of the crime that makes you eligible penalty by h nally ous or functio equivalent unanimous jury. >> we do, your honor. >> then what do you do with the statement in our case law that says a simple majority is not a unanimous jury? >> we don't say unanimous jury. the 77-5ep back and say vote is no aggravating circumstance. one, they decide there's no ggravating circumstances and two -- >> they don't agree with which one? hey don't know whether it was p premeditation or robbery.

3-2 of five. >> i'm talking about in the sentencing phase now. so 7-5 means all 12 jurors found a robbery. >> we don't know. what does the 7-5 tell us the found. >> it tells us at a minimum beyond a reasonable doubt the tate had proven the existence of one or more aggravating circumstance. >> not the same one. >> not the same one. and getting back to the cocaine and the meth, the court in these ituations look at what the legislatures, its definition of the elements, and we know it's a law that florida state the element at issue here is to take someone not eligible for the death penalty and to make him or her eligible for the death penalty at the existence of one or more aggravating circumstances, not a specific one. so it is lightshed versus arizona where you can't say whether the jury agrees there

was premeditation or felony murder. in fact fthat was the case at this defendant's guilt phase ack in 1998, he was convicted of first-degree murder, and the guilt phase jury was instructed return that ld verdict either by finding premeditation or by finding felony murder and there was no jury finding as to which one it was. and so as a matter of -- i think to answer your question about to be the y all need same or not, it would depend on the state legislature -- that a simple majority is the jury unanimously usly nctionally unanimo finding that element beyond -- >> they're certainly finding it beyond a reasonable doubt and relying on the court decision in daca. >> that was 10-2. does 10-2 automatically mean that 7-5 is -- >> not automatically, your honor, but i think if you look at alfadoca, they were rejecting the same arguments this

petitioner is asking the court reject. that this long history means it's brought in. too.say this the 7-5 is not the same kind of a y verdict that you have at guilt phase because of this judicial back stop, because of the other protections that florida has put in place. and so even if it's a 7-5 vote, you still have the judge coming behind that jury. and unlike at the guilt phase, where you must accept jury's findings unless they're not supported by evidence. disagree for any reason, can give mercy for any reason and it happens a lot. so we decided some cases where a man was convicted of murder in a assault. sexual sexual by virtue of those two convictions was necessarily penalty. for the death the jury heard all the evidence, made a recommendation that he death penalty and the judge said no, i'm going to sentence him to life. court -- this is the

jury versus judge kind of thing benefits s real associated with judicial sentencing, when you go back to rophet, when the court first upheld the capital sentencing system and recognized these udicial sentences because you're not going to have so much life or death being determined exclusively on perhaps the motions of a jury. >> and that's the kind of hypotheticals the justice and i were proposing. so let's say there's a jury and with een presented evidence that the murder was for petuneiary gain, which is one of the aggravating factors, and the with a es out recommendation of death. that was the only thing that was presented to it so you know that the jury has made a death ligibility determination on pituneiary gain. then it goes to the judge and he judge doesn't think it has enough evidence of the petuneiary gain, and i thought the crime was heinous and what

not, and now i'm going to death.e the person to you say that that's fine, is that right? >> it's a hypothetical but let me tell you why it wouldn't happen in florida. a judge would not subject a jury on which there was no evidence to find that. so your hypothetical wouldn't happen. >> no no. well, he's heard more evidence a whole new 's hearing that he has, and now he's considered it more fair, but doesn't agree with it anymore but thinks it would be heinous. so that would be fine. the case.that's not there judge found that was no evidence of any -- > i'm throwing out the jury's aggravating factors, but i'm substituting my own. i thought that was what you told

constitutionalas under ring. >> i think it depends on why you're throwing it out. as with any jury finding, if the judge finds at the guilt phase there's insufficient evidence to find any element, he wouldn't determination. >> it isn't a matter of guilt. this is sentencing. let me get on to the next uestion because i think you answered this one already. in the appeal that's taken, right, the appeal is focusing what the judge has found; isn't that right, under florida law? if the person came in and said there was insufficient evidence, as to eal would only be the judge's findings and not at all to the jury's. using a if i was hypothetical correctly, if someone was convicted, had a death recommendation sentence and appealed to the florida supreme court. >> and he said there was just not enough evidence of all these aggravating factors, that would to the judge's

aggravating factors. it couldn't possibly be that he would challenge the jury's. >> the judge's aggravating actors would be detailed in a written order, but if there were -- >> i'm getting to the point appeal process suggests that the crucial death nation is y determi 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 just florida's nefit of system, is that they do have this to review. you know, there's been some uggestion of jury sentencing -- >> yes, they have something to review. the problem is, 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's a sixth amendment problem any more than he at the guilt phase when appealed, and there was a evidence, andf the they didn't know whether the jury found on felony murder first-degree on murder. they're reviewing the conviction sustains idence that

i it. >> to what degree is there a he presence about t of the two aggravating factors? justice oledo,e, in my view and i know there was moment ago about the evidence suggesting that someone else may have committed the crime. we cited a brief from their initial brief in the florida supreme court where they said contention, this is a two-aggravator case. first does not challenge the indings that the murder was committed during the course of the robbery and that it was heinous or cruel. he doesn't question the seriousness of those aggravating factors either. proportionality review, which is another benefit f florida's system, that the supreme court reviews everything for proportionality. >> can i ask you two questions on this. when have we ever said n a lackssue was based o

of a challenge by a defense attorney. do we require waivers of jury trials to be defensive. waiving the ne is jury trial altogether, absolutely. this goes to more of like the element of offense and the court held in washington versus renquenko, that -- > where have we ever said that not challenging something is an .dmission of that something appeals where they're saying, assuming the state of facts, i am entitled to x. and when they go back down, they is e that that assumption wrong. >> we cited other sources where acknowledged that in the first go-round. your question o about whether there's an existence of a doubt. found rida supreme court

both were existing. nd the opinion that led to the appeal now here. they sent it back for resentencing not because of with death e to do eligibility or the establishment of agivators. they sent it back because there as insufficient effort to present mitigating evidence. >> the advisory jury was not iven a proper instruction, and a re-sentence was ordered for that reason? reversing a been for death sentence -- >> an improper instruction to the advisory jury? >> i'd be surprised if there weren't, your honor, but i don't know. i'll look at that. admission.k to the the evidence is clear this was a robbery, there was no question it was heinous, atrocious and cruel and we would ask the court upheld the judgment.

>> thank you. six minutes. this florida d iing statute, i'm aspiring not to use the six minutes. let me go to justice scalia's question, which is not a hypothetical. although, i'm happy to answer hypotheticals. our 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 that.ld it certainly can't be told the was ite, and it absolutely not told that. again told over and over consistent with the statute that ts decision was purely