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The Parkland school shooter got a life sentence. Now Florida is poised to require fewer jurors to agree on death penalty than any other state

<i>Amy Beth Bennett/Getty Images</i><br/>Tony Montalto wears a button bearing an image of his daughter
Getty Images
Amy Beth Bennett/Getty Images
Tony Montalto wears a button bearing an image of his daughter

By Dakin Andone, CNN

Tony Montalto sat in a Florida courtroom and watched in disbelief as his 14-year-old daughter’s killer received a sentence of life in prison without the possibility of parole after a jury was unable to reach unanimous agreement that her murderer should be put to death.

“It was the third worst thing that’s ever happened to me,” Montalto said of the decision six months ago. The first was learning his daughter Gina was among the 17 people killed in the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, he said. The second was seeing her body.

“Quite frankly, for me personally, it put me right back to the beginning, to see the justice system fail,” he told CNN, characterizing the shooter’s sentence as the latest in a cascade of failures by the school system and law enforcement, who did not prevent the shooting despite numerous red flags, leaving Gina unprotected.

“Then our hope for justice through our legal system failed. It failed to punish a cold, cruel, heinous and atrocious murderer to the fullest extent of the law.”

Montalto hopes no family will endure the same disappointment, as Gov. Ron DeSantis is expected to sign into law legislation changing the requirement a Florida jury be unanimous to recommend a death sentence, reducing the number of jurors needed from 12 to 8 — the lowest threshold of any state still practicing capital punishment.

The effort found broad support among Florida lawmakers, with the legislation’s sponsors framing it as an attempt to curtail the influence of “activist jurors” who, critics say, lie about their openness to considering the death penalty when questioned during jury selection. The bill leaves in place requirements a jury be unanimous to find guilt, and Florida judges will still be allowed to overrule a death recommendation and impose a life sentence instead.

But some are opposed, fearing the new law is a constitutionally questionable reaction to a single case that could lead to more death sentences.

“While the Parkland tragedy is unimaginable, we really cannot and should not be making important legislative decisions based on one case,” Maria DeLiberato, executive director of Floridians for Alternatives to the Death Penalty, told CNN.

For Montalto, however, whose “wonderful, bright and bubbly daughter” — a straight-A student and Girl Scout involved in her church’s youth group — was brutally murdered, the new law is not about sending more people to death row. It’s about ensuring fairness to victims in a process that already affords protections to convicted killers.

“We cannot just look at the perpetrators and the effects of this law on them,” said Montalto, who said he testified in support of the bills before state House and Senate committees. “We have to look at the victims and the effect of this law on their prospects for justice.”

“If the system could stop for Gina, the system could not work properly for this killer, then surely the system had to change,” he said, stressing he spoke only for himself and not on behalf of other Parkland families. “We know it’s not going to affect the Parkland shooter; it’s not going to affect my family. But future families — why should they suffer like we have?”

Parkland jury’s 9-3 vote ended with life in prison

Nearly all 27 states that have the death penalty require a unanimous jury to recommend or sentence a capital defendant to death. The sole exception, currently, is Alabama, where a judge can impose a death sentence if 10 of 12 jurors recommend it.

Florida has, in the past, required as few as seven jurors to recommend a death penalty, but that changed in recent years due to a series of court rulings. Still, Florida’s capital sentencing process remains a complicated one, requiring multiple unanimous findings.

After the Parkland shooter pleaded guilty to 17 counts of murder and 17 counts of attempted murder, the trial moved to a separate penalty phase, where the court examined the crime and the defendant’s history to decide whether death was an appropriate sentence.

Prosecutors argued there were aggravating factors, saying the shooting was especially heinous and cruel, and premeditated, detailing the gunman’s thorough planning and comments he made sharing his desire to commit a mass killing. The killer’s public defenders, meanwhile, presented 41 possible mitigating circumstances — reasons his life should be spared. Among them were claims he was exposed to alcohol and drugs in utero and had a neurodevelopmental disorder and intellectual deficits.

The jurors unanimously agreed with prosecutors on the aggravators, the first step necessary for a death sentence, making the defendant eligible for death. But they were unable to unanimously agree that the aggravators outweighed the mitigating circumstances.

One juror was a “hard ‘no'” due to the killer’s history of mental illness, the jury foreman told CNN affiliate WFOR. Two others voted the same way, resulting in a 9-3 vote for death. That meant life without parole, a sentence the judge was bound by law to impose.

A next step for a ‘law and order’ state

The victims’ families — many of whom supported a death sentence — were stunned, disappointed and angry. Some wondered aloud who the death penalty was for if not the Parkland shooter.

Montalto has struggled to understand the jury’s conclusion, which followed days of heart-wrenching victim impact statements and a jury walkthrough of the high school building where the shooting occurred, preserved as it was the day of the shooting.

In his eyes, the trial was unfair to the victims. The families had to remain composed to ensure fairness to the shooter, and he said they were allowed to show just one photograph of their loved one during victim impact statements, while the jury saw numerous of the killer over the years. And the families’ statements — their chances to illustrate the magnitude of their loss and the lasting impact of the killer’s actions — were “minimized,” he said, when the jury was told not to consider them during deliberations as aggravating factors.

“He had a tough life,” Montalto said of the shooter. “Does one individual’s tough life justify the taking of another, let alone 17?”

DeSantis, who has touted Florida as a “law and order” state, expressed his own disappointment after the sentence. He raised the issue again in January, when he offered a preview of coming legislation to the Florida Sheriff’s Association Winter Conference, saying the sentence did not represent the “sense of the community.”

“I do think there are people who get on these juries who never intend to administer capital punishment,” he said. “Bottom line is that can probably be changed by statute. I mean, obviously a majority of the jury has to (recommend the death penalty), maybe a super majority … Maybe 8 out of 12 have to agree, or something. But we can’t be in a situation where one person can just derail this.”

The legislation does just that, though it leaves in place the unanimity requirements for guilt and aggravating factors, something supporters point to as safeguards against wrongful death sentences. It also requires a judge explain if they choose to override a jury’s recommendation of death to impose a life sentence, which remains a potential backstop.

The sentence received by the Parkland shooter loomed over debate surrounding the proposed new law.

“What happened in Parkland was abhorrent,” state Sen. Blaise Ingoglia, the lead sponsor of SB 450, said moments before it passed the Florida Senate. “What happened in Parkland was a tragedy that will forever stain this state. We all grieve for the families of Parkland and that community. But what that verdict did do was expose a flaw in the current system.”

“If a monster like that, who commits heinous crimes like that, does not deserve and get the death penalty,” he asked, “then what do we have a death penalty for?”

New threshold is ‘unheard of,’ critic says

Support for the new law, however, is far from unanimous, with critics like DeLiberato of FADP — a group which is opposed to capital punishment generally — fearing it will lead to more death sentences and raise the chances of an innocent person being executed.

“I definitely don’t think we need a death penalty. However, if Florida is going to have a death penalty … then it should be reliable and accurate, as reliable and accurate as a human criminal justice system can be,” she told CNN. “This return to non-unanimity is just devastating in terms of reliability.”

DeLiberato agrees the system is flawed for myriad reasons, but removing the unanimity requirement will make it worse, not better: Florida already leads the country in the number of people exonerated from a state’s death row, with 30 exonerations, according to the Death Penalty Information Center. At least 29 were the result of non-unanimous juries.

DeLiberato, herself a capital defense attorney, also fears the new law will lead to more people on death row, making it easier for juries to recommend a death sentence and making prosecutors feel more compelled to seek one for victims’ families, knowing the required threshold is lower.

Jury unanimity is a “fundamental right,” she said, pointing to Ramos v. Louisiana, in which the US Supreme Court ruled unanimous verdicts are required to convict someone of a serious offense.

“Yet to execute you … it can be now 8-4? That’s just unheard of,” she said. “No other state in the country has ever done that other than Florida.”

The Sunshine State once required just a simple majority, or 7-5, vote for a death sentence. But the Supreme Court ruled the state’s sentencing process unconstitutional in 2016, because a judge was allowed to overrule a life recommendation and impose death.

That was followed by a Florida Supreme Court ruling that found the jury must be unanimous to impose death, and Florida lawmakers adopted the unanimity requirement soon after. But the Florida Supreme Court reversed that ruling in 2020, and while acknowledging the legislature had already changed the law, the ruling gave the legislature discretion to revise the statute.

Still, DeLiberato believes the new law is at risk of being found unconstitutional by the US Supreme Court, even if the Florida courts say it’s OK. But she doesn’t believe someone would “sneak on a jury” to spend several months listening to “horrific testimony,” only to vote against death.

She acknowledged the pain of Parkland’s families, saying she could not fault anyone for seeking justice for their loved one. But she dismissed the idea justice requires the highest possible penalty.

“Let’s be clear, life without the possibility of parole is a severe punishment,” she said. “You are condemned to die in a Florida prison.”

‘The opportunity of justice’

Asked about criticism of the legislation, Montalto emphasized the goal is not securing more death sentences. Trials need to be fair, he said, and he does not feel every convicted murderer deserves to be put to death.

“This bill is a victim’s rights bill. We want to believe in our justice system. Our justice system can’t be halted by one individual. We need consensus, collaboration, deliberation to take place, and that was halted by one individual in our case,” he said, referring to the juror who was a “hard ‘no.'”

Additionally, Montalto stressed there remain ample protections for capital defendants. That includes a unanimous finding of guilt and, in Florida, an automatic appeal to the Florida Supreme Court for someone sentenced to death.

Even if the conviction and sentence is upheld, many capital cases are subject to years of appeals in both state and federal courts — often up to the US Supreme Court — before someone is executed.

“The convicted murderers have a lot of stuff in place to ensure the fairness of the trial to them,” he said, “but what is in place that assures the fairness to the victims?”

“You need fairness,” he said, “but the victims deserve the fairness, too.”

Opponents will use whatever avenues are available to challenge the law, if it’s changed, Montalto said. And while he feels the judicial system failed his family, he still believes in it.

“I can’t control that,” he said. “What I can control, though, is trying to make sure that other victims’ families are provided the opportunity of justice.”

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