- Associated Press - Wednesday, June 15, 2016

DOVER, Del. (AP) - Delaware’s Supreme Court is reviewing the constitutionality of the state’s death penalty law in light of a U.S. Supreme Court ruling earlier this year.

The court heard arguments Wednesday after agreeing in January to answer questions from Delaware’s Superior Court on whether the law meets constitutional muster. Meanwhile, all death penalty trials are on hold.

Questions were raised about Delaware’s law after the U.S. Supreme Court struck down Florida’s death penalty sentencing statute. That statute required a judge, not a jury, to find the existence of an “aggravating circumstance” making a defendant eligible for the death penalty.

Delaware’s law is similar to Florida’s, but prosecutors argue that it is constitutional because a jury makes the initial decision on whether a defendant is eligible for the death penalty.

“Delaware’s capital sentencing procedure provides the constitutional safeguards the United States Supreme Court concluded were lacking in Florida,” prosecutors said in a brief submitted to the court.

The state public defender’s office disagrees, noting that the U.S. Supreme Court said in the Florida decision that a jury must find each fact necessary to impose a death sentence.

“The Sixth Amendment requires not a judge, but a jury, to find each fact,” public defender Santino Ceccotti told the justices Wednesday.

In Delaware, after convicting a person of first-degree murder, a jury must find unanimously and beyond a reasonable doubt that a statutory aggravating factor making the defendant eligible for the death penalty exists. Once that decision is made, however, a judge can determine whether other aggravating circumstances exist, and it is up to the judge, after considering the jury’s findings and recommendations, to determine whether aggravating factors outweigh mitigating factors, thus warranting the death penalty.

The question for the Delaware court is how to apply the language in the Florida decision to Delaware’s death sentencing scheme.

Among other things, the court must decide whether a Delaware judge can independently find the existence of an aggravating circumstance. It also must consider whether the weighing of aggravating circumstances against mitigating circumstances must be done by a jury instead of a judge and whether that subjective weighing amounts to fact-finding.

Justice Karen Valihura noted that the U.S. Supreme Court did not expressly say in the Florida decision that the weighing must be done by a jury, noting an earlier Supreme Court ruling that said a judge can do the weighing.

“Isn’t the weighing still within the province of the judge?” she asked.

Deputy Attorney General Sean Lugg said Delaware’s sentencing scheme, which was revised in 2002 in response to a previous U.S. Supreme Court ruling, meets all of the elements outlined by the Supreme Court in the Florida decision.

“The fundamental right to a jury is provided by the Delaware statute,” he said.

The court is expected to issue its ruling within 90 days.

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