Attorney At Law Magazine Vol 5 Issue 10 - Page 38

From The Bench Jury Must Decide Eligibility for Death Even With a Plea to Capital Charges; What Should Be in the Plea By Robert Gottsfield A lthough well-known to capital attorneys, those not involved in such cases may not realize that even where a defendant pleads to capital charges, he must be advised that a jury must determine his eligibility for the death penalty. This is the mandate of such cases as Ring v. Arizona, 536 U.S. 584, 607-09 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 496-97 (2000). And see a recent note on the subject, Sarah Breslow, Pleading Guilty To Death: Protecting The Capital Defendant’s Sixth Amendment Right To a Jury Sentencing After Entering A Death Plea, 98 Cornell L. Rev 1245 (July 2013). Usually a plea to first degree murder involves the state taking death as an option off the table, which has often induced the plea in the first place. However there are instances where no offer is extended and the defendant pleads straight up to the capital charges. In that situation defendant must be told that a jury will make the life and death decision. To be sure where a capital defendant pleads straight up to capital charges and death is still an option under the plea, he can agree, assuming the state and the judge have no objection, to have a judge conduct the penalty sentencing stage. To do this the judge must obtain a knowing, intelligent and voluntary waiver of a jury trial at the penalty stage. At the plea hearing, in that instance, the court must obtain defendant’s signature to a waiver of trial by jury form. In addition the defendant must be advised the state must prove the existence of at least one aggravating circumstance beyond a reasonable doubt to a unanimous jury before he would be eligible for the death penalty; that if the jury determined no aggravator was proven he would not be eligible for the death penalty; that he would have the right to present mitigation evidence to the jury in an effort to persuade the jury that death is not the appropriate sentence and that natural life or life with the possibility of release after 25 years should be i