tv Politics and Public Policy Today CSPAN October 23, 2015 11:00am-1:01pm EDT
with the caregivers did you have in your research? >> well, i think the cfpb's program that they talked about where they have several booklets to educate caregivers and people who have fiduciary duty over senior accounts, i think those are helpful. those are pretty new. they are being promulgated in different states. >> right. >> so i think that's very helpful. >> but, yes, i think caregivers need more education. it's something that we can start to do in our publication. i spoke with one woman. exactly the same thing. father and mother were involved in the scam and she did not know how to stop them. >> right. >> so widespread education can be very useful. >> sure. >> i found a victim specialist from the fbi in los angeles who people come to her when they
have relatives who are repeat scam victims. and these are often the toughest. because they have developed an emotional relationship with the scammer often. and they really trust them. and this woman from the fbi, she tells people, call me. if somebody calls you, you call me. and i'm going to walk you through this. i'm going to keep you from getting scammed again. sometimes it requires really hand-in-hand cooperation. >> in some of these, you'll see they will get into it, they will send them a few thousand dollars. and well, we've got these additional costs over here. and all of a sudden they think i'm in this far. and they keep going and going. it's heartbreaking what you see. but thanks for your work on that. really do appreciate it. professor wallace, in your testimony you talk about how in your salesperson you have seen a lot of anxiety about using technology and naive trust about
technology that pose risk to consumers. and things are constantly moving, as we see. and my adult daughter has, because i know we're on the record here, quit using facebook once my wife, her mom, started getting on facebook. >> facebook is for old people. >> there you to. so we are seeing all of this transition there. so what are the most effective methods you have found to teach seniors they can be safe online without thinking they're going to break their device or trusting every single popup that comes on the screen. >> yeah. it's a tough problem. one thing that helps a lot is being among peers. and realizing that they are not alone and that other new comers to the technology are struggling with the same kinds of issues. one exercise that we have done in the past that i think has
been pretty effective has been considering what they do with physical postal mail that they get that looks suspicious. it has a certain smell to it, right? and you get something in the mail and look at it and say, no, i'm not going to -- i'm going to throw this in the waste bin. >> professor wallace, my time is long over. i'm going to yield back. hopefully they can finish back up on that. thank you. >> sure. >> the chair thanks the gentleman. the gentlelady from illinois for five minutes, please. >> first, ms. stanger, during our first panel we talked about shame. we talked about it again in this panel. so i'm wondering if there are tools other than the individual that couldn't be more effective. in your article you mentioned several cases in come a bank allowed older people to
repeatedly withdraw large amounts of money. presumably when it was out of order for that particular person and actually did nothing to investigate whether fraud was involved and perhaps didn't even notify anybody until the point at which the person attempted to get a loan from the bank. so what should be or is being done to encourage banks to take a more active role in intervening in these situations? >> so i don't have that much information on this except that there are some banks that are making it part of their -- you know, they're company wide effort such as wells fargo, i understand. they are educating everybody to be a reporter. you know, in -- not every state has the same law in terms of who is supposed to be a -- has to report when they think elder fraud is happening.
it varies from state to state. but there are companies themselves that are taking it upon themselves to do this. and i can't speak in great detail about what the bankers associations are doing. but there are some banks that are saying if you think there is something going on, you need to speak up right away and not wait until time goes by. it is certainly more education at all levels from the teller. the teller is off the person that sees the senior taking out the money. it's a fine line between letting them have control over their money and putting up a red flag. we also think it's a good idea for family members to have a relationship with the local bank. often seniors do go to local branches. they don't -- i don't know how much they're doing their banking online as opposed to other population groups. but often seniors go to the banks, especially if they're going to be taking out a large amount of money. they're going to go to the teller. so it is a good idea with the
families to have a relationship with with the bank so this kind of conversation can be had. >> i have a feeling if that woman was trying to help her son will reportedly in peru and needing help. even if the teller would have said, i've been taking out a lot of money, she might have shared that story. my grandson is in trouble. and i'm trying to help him. it just seems like those kinds of conversations even could help. i don't know how one enforces that. however, i have one other question then for you and then for professor wallace. i think some people think that these might be small scam operations. but you pointed out that actually is some of these are fairly big-time operators. wonder if you could talk about that a little bit. >> so we looked at something called the jamaican lottery scam, which you may have heard
about. this is -- it operates not just out of jamaica but other foreign countries as well. costa rica. elderly people are called. they have a list. the scammers have a list that they have collected. it may be because somebody has responded to something in the mail. and then they have sent something back their name, maybe a phone number or money because they think they are going to be receiving something. these lists are created. these scammers get a hold of these lists. they know this is somebody who already responded once to a mailing. and so then they will call these seniors. and they are very, very organized. they know how to get seniors's emotion. they know how to draw the senior in. and they often use threats. these things go on for months and months. people lose hundreds of thousands of dollars.
so they are very organized. >> you mentioned the breaking emotional barriers at michigan tech that could serve as a national model. what are things you observed in seniors who have taken the course and do you think it will be reflective of trends in seniors nationwide? >> yes. certainly the anxiety and the fear of adopting the technology is a profound one. we need to balance this concern about fraud, which is absolutely legitimate with a -- something that encourages them to explore in a safe way. and so finding that balance is really a key issue for us. and we still struggle with it. but we are looking for sort of metaphors and ways in which we can relate it to their life
offline. what do you do to be sensible and safe and secure in your regular life? can you transfer those kinds of skills over to the digital world? so that's one of the things i think that is certainly -- >> although i do want to say that -- 35% of americans age 65 and older currently use social media, up 27% in 2014. so more and more people are. and in 2014, 59% of this age group using the age group with 71% going on daily. so we are seeing more and more seniors. >> for sure. and especially in our area. it is vital for them to go online. so many of their family members live far away now. so it is a tremendous asset for them. really a lifeline in a way.
it's important for them to adopt this technology. >> thank you. i yield back. >> great. gentlelady's time has expired. the chair recognizes mr. mullen of oklahoma. >> thank you, mr. chairman. thank you both for being here. professor wallace, what gave you the idea to even start this up? just taking a look at you, i'm very impressed -- not by your looks. i'm very impressed by the idea that you would take this initiative. was this something driven by you, by your students? what made you even think of this? >> one driving force is that the type of material that i teach to our students involves understanding users of the technology that they are developing. so our students are going to be developing the software that we all are going to be using in
just a few years. i want them to understand what what regular people are like. and certainly people who don't have that kind of deep understanding of the technology that they do. very often what happens is software people will develop software for other software people. so we need to have a broader view of what the user base is going to be like. by the way, one thing i want to insert here, i got a message from one of my colleagues at breaking visual barriers, this is not a senior problem. digital literacy is a concern for people across age groups. we have worked with people, well, younger than i am. so by definition they are not old. they struggle with technology.
in general, this is a larger issue that impacts seniors greatly. but you need to keep in mind it is a broader issue. >> well, thank you for seeing a need. and then i'm assuming that once you started down this path it became a passion. because the amount of work you put into -- this wasn't just a class project. did you get personally involved in it to some degree, surprisingly? >> yeah. i think it's fair to say that everyone who has participated in it, students, faculty, really take a personal interest in it. it's the kind of work that is so much fun that it doesn't feel like work. apart from the learning that goes on in your session, it is a social session and a way for seniors to meet and work together. it is just a lot of fun. >> well, thank you.
ms. stanger, did i say that right? >> yes. >> the way i understand this this wasn't exactly your background. you just started down path. one door opened to another. now it's almost a passion, if i'm seeing that right. is there something that led you down this path? >> it is my passion. i am a personal finance editor. senior editor "consumer reports". this is the second piece. two years ago we wrote about scams or i should say fraud committed by family members and people that the seniors know. this is more about scams by strangers. yeah, i feel very strongly. retirement security is very important to us. i write on all sorts of retirement issues.
so i'm very experienced. you have to get drawn in. it is just heartbreaking. there is so much we can do. >> if you can take maybe two things you would like to see for maybe there has to be more personal action, there has to be something signed before you can do it. what would you get of this panel or this hearing. what would you gives, two suggestions, to say, hey, work on this. >> believe it or not, i believe this group is very impressive. they are the only one i know of in the country. i don't think it's particularly difficult to fund a little theater group in all communities in the country where they could be communicating to each other. this is senior to senior. isolation is a major part of
this issue. getting people out in the community talking to each other is very important. there is that communication. i just think dealing at a grassroots level can make a difference. that was in many of the statements. and what else? i think just supporting the work of -- i think the ftc is doing wonderful work to pass it on. it is a useful and, again, grassroots effort. and i think the cfpb's complexion, specifically collection of anecdotes from people is very helpful. they don't always know what the age is i think -- am i right? they don't collect the ages of all people who report. if people are reporting reverse mortgages, they know it is somebody 62 or older. it helps me as a reporter.
we need more data. >> thank you for the work that both of y'all do. mr. chairman, i field back. >> the chair recognizes the gentlelady from indiana for five minutes. >> professor wallace, prior to coming to college, i was at itt tech community college. i was there from '07 to '11. i must say the college and community colleges exploded in enrollment during that time period because so many people had gotten laid off of their jobs of all ages, but particularly those who were 40, 50 years old. they needed to come back to college because they had no digital literacy skills. and they couldn't even apply for jobs online because of that digital literacy or lack illiteracy. i'm very pleased that you're doing this.
how would you encourage other schools. how much are you talking about this. obviously this is a nice platform for you to publicize. how are other communities? are they taking up your baton and doing what you're doing? or are you a unique program in the country? i'm really not that familiar with the various programs. and then secondly, what are some of the strategies you're using to teach the seniors? >> we are not unique. there are several other efforts in this regard. senior net, cyber seniors, generations online. there are a lot of groups doing similar work in this space. >> do they actually go into the communities like you are doing, or are they more online educational tools? >> some of them truly are
working one on one. i don't want to claim that we are the only ones doing this kind of work. this is a tremendous platform to raise awareness. i was invited to the white house conference on aging over the summer which gave me a platform to speak out about this. and certainly within the state of michigan there has been a tremendous amount of interest that's come up from that. so we are working in conjunction with other universities. i feel like it's an easy model to implement. we are cot phiing what we do. >> what are some strategies that you have found that have worked
best when you are teaching? >> well, as i said in my statements, having tutors monitor their own behavior and speak out loud about it is an important piece of it. so having experienced computer users, looking at what's on the screens, well, in this case i'd be thinking about this. and i would be worried about this. i would want to try out this. and working out what's going on in their minds saying it out loud is an important piece of that to articulate this is a process just like working with any other kind of aspect of life. you have to weigh the pros and cons and think about things in a sensible way. looking at junk mail that you get in your mailbox compared to a potential scam by e-mail. that kind of brings it back to familiar territory, which i think is useful.
this is not something entirely new. it's different. and you have to learn how to use it. but it is not spiral useful. i just want to say that ms. stanger and i are both in solidarity about this issue. education in this regard is an extremely effective and low cost way of addressing this problem of fraud online. a little bit of education i think can go a long way to stem some of the problems that we see. they take immense amounts of time and effort to hear later. >> thank you. i know we focus on a lot of our education of the young of our children getting online but we don't spend nearly enough time with your seniors. every time i did and visit my parents, "consumer reports" is front and center. are there enough in your research available and accessible tools for seniors to
report, have you found in your research are there enough tools and do they know what they are? >> i think the last part of your question is the important thing. there are plenty of tools. we have several in our article several places where people can report. obviously aarp is very involved. and they have their scams and fraud page, cfpb, financial fraud enforcement, stopfraud.gov. and the hotline where you can call up and tell you where to go for help. a lot of people, the first person they might report it to is a police person, local law enforcement. there could be more training with local law enforcement. i spoke with local prosecutors who said there are still when somebody comes to them and says i've been scammed.
this person called me. the cop is thinking to himself, well, that was kind of stupid. why did you do that. and they have to be trained. i understand that the justice department is getting involved in training local police to spot elder abuse. not just financial elder abuse but also physical abuse, emotional abuse and so forth. at the very local level where people are doing the reporting, i think there has to be better training. in some communities, some large communities there are task forces. in seattle, san diego, where different groups have come together and really created a public face. and that can help. in san diego, there's a fellow named paul greenwood, who is an assistant district attorney, i think. and he is very well known. one person we pro filed was
involved in a scam. he sent money in a scam. then he thought better of it. and he told a friend and the friend went to paul greenwood's office. and working with wells fargo, he was able to stop the payment that he was make to go a scammer. so it can work if people -- not always. but it can work sometimes if people report it quickly and they know where to go. and on a local level i'm note sure that that always happens. >> thank you. thanks for your efforts in protecting our seniors, both of you. appreciate it. i yield back. >> the gentlelady yields back. the chair recognizes the gentleman from kentucky. >> thank you very much. thank you for being here. a lot of us have similar questions. is very similar. i was going to ask the biggest takeaway you got from the seniors. but what in your article was the common -- was there a common thread? you said isolation. so when the phone rings they answer the phone and engage in
conversation. is there something common that we should be looking for? several things that were in common? >> so one common thread is that they -- well, in many of them they were acting, sadly, because they wanted to provide for somebody, for children or grandchildren. they thought this would be great. i'm getting these winnings. father ortiz was hoping to get the money and fund a school. the scammers know this. they really know how to push those emotional buttons. and that's sad. the older people who were scammed, people in their 80s, those i have been told, and it seems to be true from my research, they get scammed for bigger amounts of money. younger people are a little more
likely to report. maybe they don't go as far. but in general, it's because people really were -- they really trusted these scammers at some point. the other major thing they were told is don't tell anybody. so they kept it to themselves because they were afraid of what would happen if they did tell. and that's why they were scammed so much. finally, either somebody caught on or they themselves thought, you know what, this isn't sounding right and then they reported. so the secrecy. >> i guess another question to look for, you think we should be looking for. i have a friend who had an older brother that was being scammed for several hundred thousands dollars. there's no legal aid. because he's an adult. have you seen where some of the other family members say don't do this.
this is just scamming and it keeps going? >> yeah -- >> i didn't think about that case that you just said that. it is the trust they build with the scammer. >> that's right. >> but that's what i think. >> it's true. unfortunately, some of the worst cases, repeat cases they develop a relationship with the scammer. and sometimes -- and relatives are saying, you know, you can't do this, dad. no, no, no. this is true. and they trust the scammer more than they trust the adult child. i'm at a loss really to know what to say except that once -- if a senior can at least be shown some of the things that are not -- that don't make sense, maybe they will start to realize, oh, you know, this web address, that doesn't seem
right. it doesn't have a dotgov at the end. >> right. >> or the urls that somebody younger knows about. they just know. the popup that says microsoft says you have a problem with your computer, click here. a lot of younger people will know, i'm going to not go in there. but somebody who is not as familiar won't know. it is just education. i did this special -- the victim specialist in los angeles said that some of the victims she dealt with she wrote down something like a script for them to put next to the phone so when somebody called they knew what to say. it requires real preparation. it's almost an addiction for some, sadly. >> professor wallace, i know if you ever got to your answers.
what trends do you see in your online program? are there trends? are some sessions more popular than others? >> trends. well, certainly a trend toward mobile devices. we have a greater variety of devices coming in. which makes it harder for us to keep track of -- we're not familiar with ourselves. actually that speaks to one thing that we try to get to our learners is that we don't know everything. we have sort of ways of approaching ways of a new device. it could be a new service of some kind. so we have ways of looking at it, checking it out, making sure it is legitimate and moving on. so there is certainly a greater
diversity of both in terms of the actual physical devices but also really in terms of the kinds of services that people are using. so that means that we have to teach them a more agile way of approaching the technology. we can't just teach them how to use gmail in its current form. if we lock them into that, the interface will change over time. and so we need to teach them these deeper skills. again, it's getting back to the idea what kinds of approaches do you use in the physical world to ensure if this is something legitimate and proceed from there. so those kinds of techniques we try to transfer them over to this digital world. >> well, thank you. and i appreciate you guys doing this. my time has expired. so i will yield back.
>> the chair thanks the gentleman. the chair will recognize himself five minutes for questions. did let the other members go first because i knew we were coming up on a vote. but it looks like we've got enough time to conclude this and adjourn the subcommittee before we go to record our votes. ms. stanger, what kind of response have you had prior to publishing the article in consumer reports? >> people in the justice community, those are people who deal with -- lawyers and people, workers, they are very happy that it's out there. because they think it gets the word out. apparently the ftc called this little dramatic route to congratulate them. maybe they will work together. that would be great.
i haven't looked at the letters we've got recently. so i don't know what readers are saying. we just hope that having it on the cover of a national magazine will get people to think more about it. and think about it in their own lives. >> certainly drives the interest factor. professor wallace, you may have noticed that you have arrived in a digital free zone. it's ironic, because we are the principle committee in the house of representatives that deals with technology and communications and they provide us a pad of paper and a pencil. so there's room. there's room for improvement. but i just wanted to ask you in the health care space, we have something known as syndromic surveillance. decongestant sales may be a
tip-off there is a flu epidemic in the community. is there anything in your world where there is an increased level of scamming activity i can remember as a kid, did they used to call them pigeon drops? someone would come to town and take advantage of people. you would sigh an article in the newspaper about there are scammers in town so be careful. is there any way in the digital world you have of getting tipped off and getting the information out that there is an uptick in this type of activity? >> i do not know of any effort in that regard. but you have given me a great idea to take on some of the faculty colleagues who work in that space. if it doesn't exist right now, i think that's a great idea. >> i don't even know if it's possible. but i also did not know, ms. stanger, about the clasp-off money cards people have.
i didn't know you could do that. and i don't know if there's any way of watching that kind of activity. that almost seems like legalized money laundering to me. >> i understand the green dot card doesn't have the capability anymore. so i think they're trying to eliminate that. but the scammers come up with new things. somebody told me now the iphone cards, i guess the cards -- i don't know. >> apple pay? >> something, i don't know if it's that. the scammers move on. they move on to new payment. they figure it out, unfortunately. >> they are much more fascile that's the united states comment. and the isolation factor and how that is used and almost monetized to take advantage of
people. hard to know how to overcome that except that making families aware that that is a risk factor in this population. >> it's ironic. because the isolation is something that really motivates their computer use at least in our case, a lot of people don't have relatives nearby. so a great way to communicate is through social media and so on. and so the irony is of course then they are isolated and don't have feedback. but hopefully we're providing a service for them that does provide that. working together as peers is a help. >> and just as a general word to families to be on the lookout for when you know you have a family member who has tended to be isolated that they are perhaps at reufrbg for being targeted by this type of activity. professor wallace, i have to ask
you one last brief question that's off topic. but you reference facebook is for old people. what's up with that? >> i'm just echoing the sentiment of my children who say young people don't use it anymore. >> so where are they? >> they're going to tell me. >> it's in development? all right. i will yield back the will balance of my time. seeing there are no further members to ask questions for this panel, i want to thank our witnesses for being here today. before we conclude, i would like to submit the following document for the record by unanimous consent, a story by ms. stanger in the upcoming issue of "consumer reports" magazine. members have 10 business days to submit additional questions for the record. and i ask the witnesses to submit their response within 10 business days upon receipt of such questions. without objection, the
. former rhode island gopher lincoln chafy announced he is ending his democratic campaign after failing to gain traction against hillary clinton and bernie sanders. we covered his announcement. you can watch it at c-span.org. a new iowa poll says ben carson has taken the lead from donald trump in a race for the republican nomination. the des moines register poll finds dr. carson with 28% support compared to donald trump's 19%.
>> every weekend the c-span networks feature programs on politics, non-fiction books and american history. tonight at 8:30 eastern on c-span, we're live from council bluffs, iowa for a town hall meeting with senator ted cruz, followed by a live call-in hearin hearing. former secretary of state hillary clinton and former governor of rhode island lincoln chafy. sunday even at 6:30, carlie fee reno will hold a town hall in pwaou fort, south carolina. and mary norris. and dave maraniss on the city of
detroit. and "being knicks object". >> and priest john danforth on how he thinks a sense of religion can lead us out of the the 'em bit erred state of politics. saturday even 6:00 p.m., clayton laurie on espionage and intelligence gathering in the civil war. sunday morning at 10:00, on oral histories, julian bond, who passed away in august, in a 2002 interview on his civil rights career, growing up in the segregated south. and worked with a student nonviolent coordinating committee. get our complete schedule at c-span.org. >> the supreme court heard oral argument over whether florida's death sentencing policy is constitutional. in hurst versus florida, the
jury recommended that timothy hurst be sentenced to death for the killing of a co-worker in 1998. the judge went with the jury's recommendation. hurst's lawyers argued his intellectually disability disqualifies him and the judge should not have made the final ruling on the death penalty. this is an hour. >> arguing next 147505, hurst versus florida. mr. waxman. >> mr. chief justice, may it please the court, under florida law, timothy hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death. that violates the 6th amendment. in florida and florida alone, what authorizes imposition of the death finding is the finding
of fact by the court, a finding that the trial judge makes independently and "notwithstanding the jury's recommendation as to sentence." now, the state here contends that capital sentencing juries make implicit findings that satisfy the 6th amendment under ring, 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 the notion that the jury's verdict is anything other than advisory. florida lawen trusts the factual findings of aggravators to the judge alone who may do so on the basis of evidence that the jury never heard and the aggravators they were never presented with. >> is there ever a case in which
they found aggravators and recommended the death sentence and the judge reversed that finding? >> there may well be. this is principally death eligibility not sentence selection. >> either way. >> yes. >> is there ever a case in which the jury did not find an aggravating circumstance but the judge did? >> well, we don't ever know what the jury found about any of the specified aggravating circumstances. the only thing that the jury tells the judge is we recommend life/death by a vote of -- >> right. they can't recommend death unless they find the aggravator, right? >> no. no. as a matter of state law, that's not correct. they can't recommend death unless seven of them believe there is some aggravator. but florida supreme court. this is not ring problem here. the florida supreme court has
recognized where two aggravators are presented, it is impossible to know, even if a simple majority agreed on a single aggravator. >> that's a common feature, though of jury deliberation. let's say an aggravator is whether the murder is particularly heinous. and it can be for a number of factors. one, the victim is a juvenile. so maybe three jurors find that. or an officer was also killed. or it was in the course of another felony. in a typical case of finding 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. chief justice, florida and -- 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's unanimous. they cannot even be told that a majority have to agree as to the existence of one of the -- >> isn't that true? taking it out of the death penalty context, that's true with every jury determination. you could have the jury determining that the person didn't commit the offense because his alibi was good. or because somebody else did it or -- any number of 12 different reasons that they think he was not guilty. it doesn't have to be agreement by the jury on a particular basis. for their verdict. >> we're talking here, mr. chief justice, about elements of the crime. as this court explaineden rae, the existence of a factory is an element of a death eligible crime. can anybody imagine a world
which would be the an loss log in florida as the guilt/innocence phase of any trial, shoplifting trial we're told, now, look, i'm the one who will decide whether a shoplifti i would like your input on whether you think each of the specified elements is or isn't satisfied. i mean, nobody would stand for an argument like that. >> i'm not sure. are you sure that if you have a crime that can be satisfied by various elements, the jury has to agree upon the specific element that satisfies it? >> if they are distinct elements, and this implies the shad point that the state is raising, if the state, consistent with long historical tradition and a finding of equal
culpability chooses to permit an element, in shad it was premeditation or the mental state, to be satisfied either by premeditation or felony murder, that is fine. but that's not the florida system. florida requires as a matter of law, and the florida supreme court has said this over and over again, that a defendant is eligible for death only if the trial judge finds as fact beyond a reasonable doubt that a particular statutory aggravator exists. i would submit, even if that were not the case, extending shad, which held that in light of 150-year history of states including in the mental element for first-degree murder either felony murder or premeditation, that combining those two elements didn't satisfy the death penalty. none of that is here. this is a question of the sixth
ame amendment and the eighth amendment. no state has ever said that the jury can just decide some muddle of aggravation, they don't agree on the specific element, and that would violate i think the sixth and eighth amendment precedence. >> i would think just the opposite, that the necessity of finding the elements of the crime goes all the way back into the mists of history. and this aggravator, we made it up, right? that's just recent supreme court law. if even one of them should be satisfiable by simply finding the generic conclusion rather than agreeing upon the particular species at issue, i would think it's a the latter rather than the former. >> justice scalia, i'm reminded
of your separate opinion, i think it was in walton versus arizona, where you were choosing between two things that you didn't particularly like, and one of them was the fact that the court had made, recently or not, had made a finding of a -- beyond a reasonable doubt, a factual finding of a specified aggravating factor an element of the crime. and whether it's recent, whether the court should or shouldn't have done it, it has. and it is just like any other element of the crime. and on the shad point, i think the other point i would have said is, the florida supreme court, and i'll refer the court to the bevil case, the florida supreme court said the 16 aggravating factors that makes one eligible for death are vastly incommensurate in terms of relative levels of -- >> mr. waxman, can i ask you
this about ring? i wasn't on the court at the time of ring. could you tell me if ring is entitled to greater weight as a precedent than, let's say, greg versus georgia and the other chases upholding the constitutionality of the death penalty? >> oh, i wouldn't be prepared to assign weight to either of the of them. i think ring is predicated on greg. to justice scalia's point, if greg hadn't decided there hadn't been a specific appellate-reviewable narrowing, ring wouldn't come you tell, because an aggravating factor wouldn't be an element. >> do you think this scheme, assuming we agree with justice scalia that you don't really need unanimity, would this still be good law under apodaca, the
said that we needed a unanimous jury but, you know, nine out of 12 is okay? do you think seven out of five is okay? >> i hope it was clear from our brief that we think seven out of five is not okay. it doesn't require this court to overrule apodaca. >> we're not required to do anything. we could just say it's not the functional equivalent. shouldn't we overrule it? >> we think for the reasons stated in our brief, you should overrule it. and particularly in the eighth amendment context, where the question is death, the jury should be unanimous. i mean, there is no other state that permits anyone to be sentenced for 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 all the
other elements of the crime. now, apodaca -- >> wait a minute. they require unanimity for conviction, right? >> yes. >> they just don't require unanimity on the sentence. that's quite different from whether the person committed the crime or not. >> exactly. and justice scalia, leaving aside our eighth amendment point in our brief that followed on justice breyer's concurrence in ring, 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 in apodaca itself, which as
justice thomas pointed out in mcdonald, is an extraordinarily unusual case, even there, six justices indicated that a simple majority rule wouldn't pass muster. i mean, 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 the element, we need substantial reliability that the jury actually performs those functions. and in this case, again, in this case, if it were true that the sentencing jury was actually determining death eligibility, which it is plainly not, as we point out, the eighth amendment would certainly be violated under caldwell, because florida juries are told that they donate determine death eligibility. and the state simply can't have
it both ways. either the jury is correctly told that its role is merely advisory, in which case there is a ring violation, or the instruction that it's given violates the eighth amendment under caldwell, because as in caldwell, it misleadingly, quote, minimizes the jury's sense of responsibility for determining the appropriate -- >> mr. waxman, do we just treat as irrelevant what was involved in this case, that is, the two aggravators that were alleged, the brutality of the murder, and that it occurred during a robbery, those were obvious, that they existed, is that not so? >> i think it's not so. it's probably a reason why -- i mean, the heinous, atrocious, and cruel aggravator, the state isn't even arguing to that.
with robbery, the state made a choice. they didn't even indict timothy hurst for robbery. the sentencing jury wasn't even instructed on the elements of robbery. this argument of harmlessness was never raised in these proceedings, from the sentencing proceeding onward, including in the brief in opposition in this case, until the red brief, and even there, the red brief is simply arguing that there was a fatal concession. but in any event, justice ginsberg, there is evidence in the record from which a jury could certainly find that timothy hurst, although he was found guilty of first-degree murder, did not in fact actually commit the robbery. the jury was told that to find the existence of the felony murder aggravator, it had to find, and i believe this is on page 211 of the joint appendix, 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 lili smith's handwriting totaling up the proceeds, were all found in lili smith's possession. although it's not in this court's possession to determine whether something is or is not harmless, as in ring it was remanded for this purpose. i think in this case it was manifestly not harmless. if there is any question on that question, it ought to be remanded to the state count, not only to determine constitutional harmlessness but whether there was a waiver by the state in its deliberate choice never to mention this, either to the second as i mentioned juror thereafter. >> 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 were -- there was an eyewitness from across the street who testified that he saw somebody go into the popeye's and he positively identified the defendant. >> the defendant claimed, however, that this informant was the one who did the crime. could the 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. and in fact -- >> because what makes it an aggravator is if he is the one that actually did the killing? >> that's correct. well, that's what the jury was
instructed. the jury was instructed that in order to find the felony murder aggravator, it had to find that the murder was committed in the course of him committing the robbery. >> personally. >> yes. the statute, the actual aggravator is 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, okay? so my system is that a jury, whether in the penalty phase or in the guilt phase, has to make a determination of an aggravating factor, okay? but once that's done, once the jury decides on an aggravating factor, the judge can do whatever she wants. the judge can add aggravating
factors. the judge can re-weigh the aggravating factors as compared with the mitigating evidence. the judge can do any of that stuff. but the judge has to leave alone the aggravateding factor that the jury finds. in other words, the judge can't give death when the jury finds life. and the judge 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? >> okay. you're asking only about the sixth amendment and not the eighth amendment point? >> yes. >> okay. so just to be sure that i'm specifically answering your question, if the jury is told, you must find for -- for the defendant to be eligible for death, the must find beyond a reasonable doubt the existence of at least one of the statutory aggravating factors, i would
also say for sixth amendment purposes you must either be unanimous or the vote must be at least 10-2, and the jury does so find, and you then have the belt and suspenders legal system that the state is positing that florida has here, when the judge could say, okay, i'm the one who does the sentence so i can weigh the ags and the myths, he is death eligible, because the jury found beyond a reasonable doubt that a statutory aggravator exists, but the judge can say, nonetheless, i'm giving life. there's 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's not a conviction for a prior aggravated felony, when the sentencing jury has concluded its work, 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 a 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 -- >> is that what makes a difference, then, in the end? you're saying the jury has to be specifically told that that's what it's doing? you're saying -- is the 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. >> what if it's told it has to decide on life or death, but if you decide on death, the judge is going to review it and the judge has the power to sentence to life? >> if -- i mean, there's no constitutional violation -- our view, and this, again, is justice breyer's eighth amendment point which we endorse. our view 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. if a jury says it's death, and the judge says, well, i disagree, i'm only going to sentence him to life, there's no constitutional -- >> i'm trying to understand the limits of your argument that what is done under the florida
statute diminishes the jury's sense of responsibility. the jury' sense of responsibility will be diminished to some degree if they know their verdict is not necessarily the final word. isn't that the case, whether they're 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 bear the responsibility of making the absolutely final decision. >> so justice alito, let me separate out what i'm calling the selection decision, that is, life or death, and the weighing of ags and myths, and the eligibility decision which is all the elements of capital murder have been found beyond a reasonable doubt by the jury were either unanimously or sufficient majority, 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, as long as the jury is not told that its input, which is how this florida supreme court has put it, is -- as long as they are not told that it's advisory, as 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 specifying aggravators, the constitution is satisfied. the caldwell problem is an eighth amendment problem. caldwell was an eighth amendment case. in caldwell i mean, what the jury is told here, if the system exists as the state posits it, what the jury is told here is far more misleading than what was told in caldwell. in caldwell, the jury was simply
told at closing argument that your decision, reviewable by the mississippi supreme court. a majority of this court held that that unconstitutionally diminished the jury's responsibility. here the jury was told over and over and over again, consistent with florida law, that your judgment is merely advisory, i will be the one to make this determination. and either -- 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 renders somebody eligible for death, then there is a plain caldwell problem. that's our position. may i reserve the balance of my time? >> you may. >> thank you.
>> mr. windsor. >> mr. chief justice, and may it please the court, florida's capital sentencing system was constitutional before ring versus arizona and it remains constitutional in light of ring versus arizona. what ring required was a jury determination on those facts on which the state legislature conditions the imposition of the death penalty. in this instance, mr. hurst got that. the legislature has determined that the elements necessary to make a defendant eligible for the death penalty is the existence of a murder and one or more aggravating circumstances. and what the other side calls the advisory sentence included within it a finding, as this court recognized in united states versus jones, that the jury had determined there was one or more aggravating circumstance. and so -- >> i'm sorry. how is that? when florida law says that the judge has to find an aggravator to make someone eligible for the death penalty. >> i agree with the other side that there's difference between the sentence selection and the
sentence eligibility. and so once the defendant is eligible because a jury has found all the necessary elements, then what happens after that, your honor, does not implicate ring at all. >> would you tell me how this is different than arizona? i mean, in terms of the system, just like in the arizona case there had been precedent by this court that arizona law had been constitutional, unlike arizona, every court that has looked -- every judge who has looked at it, not one of them has said that they believe personally it's constitutional. even the courts affirming on the bases of the prior precedent, and you have a little less than half the court directly saying it violates ring. so what's the jury finding when it says seven to five? >> if i could back up -- >> even when it says a murder
was committed. felony murder was charged. but we don't know if they found a robbery, right? >> the guilt phase, they convicted of first-degree murder which could have either been felony murder with a predicate underlying felony being robbery or premeditated murder. >> how do we know which one they picked? which makes them eligible for the death penalty? >> our position is he became eligible at the sentencing phase when the jury made its advisory decision, because the jury at that phase was instructed that if you determine no aggravating circumstances are found to exist, you must recommend life. >> but you do agree that it doesn't require a unanimous jury. >> it does not require a unanimous jury. >> a simple majority is all you need. >> that's right. >> so -- >> that's a jury finding. >> 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. >> our analysis for the final eligibility determination is that seven to five. i would make this point. there are two things that go on when the jury determines whether someone should be sentenced to death or not. first, the jury looks and determines whether the state has proven beyond a reasonable doubt an aggravating circumstance. that's the eligibility piece of it. then they get into the sentence selection process where they weigh the aggravators that they do find, assuming they find some, against the mitigating sixes. and of course the defendant under this court's precedent is allowed to put in any evidence that -- >> i'm sorry. the jury is not asked to find an aggravator. >> it is, your honor. it is instructed that it may not return a death recommendation -- >> no. that's not found at the trial. >> at the sentencing phase. >> you're only at the sentencing phase? >> suppose the jury comes back
at the sentencing phase and says we recommend life, and the reason, although i guess nobody would know it, is because nobody found an aggravator. can the judge nonetheless give death? >> no. with this caveat. >> they have a page in their opinion, on page 20, it cites six florida cases, which suggested to me that they thought the answer to that question is as a matter of florida law is yes, the judge can sentence to death. is it so or not? >> let me be clear. as a matter of florida statutory law it is permitted. we acknowledge under ring it would not be permitted in the circumstance where the state is relying on the recommendation to satisfy the eligibility. now, you could have a situation -- >> i missed the last part. the jury comes back. they say life. >> right. >> and we know through mental tell epathy telepathy, although i guess the judge doesn't, is the reason they gave 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. >> that isn't florida -- i mean, it's federal law. ring is over. so you say the answer is now no? >> with this caveat, justice brey breyer. >> because you agree that this case is like ring, not this case, but any case in which they recommend life? >> not any case, your honor. >> i would like to know your caveat. what is the caveat? i'm on pins and needles here. >> i am too. >> there are multiple ways that a defendant in florida can become eligible for death. one is in this case where it's determined at the sentencing phase because of the finding within the jury's recommendation. in other instances, it can be -- a person can become eligible before the sentencing phase either because they have a prior violent felony conviction or a contemporaneous conviction. if someone murdered two people and were convicted of double
murder, that person at the guilt phase has been found eligible for the death penalty. at that stage, then in your hypothetical, justice breyer, if that sentencing phase jury recommended life, the judge could override it without violating ring. now, i will tell you that as a matter of florida state law, the judge in that circumstance would face an exacting standard. and as a matter of fact, no judge has overridden a jury's life recommendation since before ring. so as a matter of function it's not something that happens in florida. we do believe it would be constitutional in the situation i described. >> suppose the jury came in hung. >> i'm sorry? >> on the sentence. >> if the sentencing -- >> if the jury instead of being 7-5, it was hung. 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 override that if he were relying on the jury sentencing finding to satisfy ring. and even if he weren't, he or she weren't, like i said, it's an exacting florida state law standard. the judge would be reversed for overturning that unless he or she determined or unless the appellate court determined that no reasonable jury in those circumstances could have imposed or recommended a life sentence. and as i indicated, it's been since 1999, since any judge actually overrode a life recommendation. >> just so i understand, so you're saying that it is possible that under florida law, the jury wouldn't find the existence of an aggravating factor, and then there are different ways this would come out, the hypothetical was a hung jury, but the judge could then proceed to find an aggravating factor, and impose the death penalty. now you say this hasn't
happened, he would probably be reversed. but theoretically this could happen? >> that could not happen consistent with ring, your honor, unless there were some other jury finding or admission that established death eligibility. >> you're saying it couldn't happen consistent with ring, meaning there are certain applications of the florida law that would be unconstitutional even in your view. >> that hypothetical that we've explored here, again, with the absence of another aggravating circumstance proven outside, and that actually happens in most cases, justice kagan. >> we don't sit in judgment of the theoretical scheme that florida has set up, do we? >> no, your honor. >> we have to ajudge that there has been unconstitutionality in this case. >> that's correct, justice scalia. and in this case there is a jury recommendation, actually two jury recommendations. >> can i give you another hypothetical scheme, notwithstanding that we don't sit in judgment of hypothetical schemes? >> sure. >> suppose the jury finds an aggravating fact but then the
judge has this whole separate hearing, right, in which other things are presented to him. >> mm-hmm. >> and the judge says, you know, i don't actually agree with the aggravating fact that the jury found but i have my own aggravate facing facts, and i'mg all the weighing and i come out in favor of death. i assume you would say that also would be an unconstitutional application. >> no, your honor, that would be consistent with ring, because again, once death eligibility, and there's a substantial difference that this court has recognized over the years between the determination of who is eligible for death and then of that universe of people eligible for death, for whom is it appropriate. >> yes, quite right. but i'm hypothesizing a case in which the jury finds that death eligibility marker, but the judge throws that one out and substitutes his own. you think that would be constitutional? >> well, the judge in that instance wouldn't be throwing it out. >> no, he does throw it out. he 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 determined, just like if in my double murder example the judge believed that -- you know, if he were sitting on the jury maybe he would have acquitted that person of the double murder, and of course you can't just override the jury's verdict based upon mere disagreement. in that case, he had been the decisionmaker, maybe he would have decided differently. the person is eligible for death, and then it's up to the -- >> i have to say that answer surprises me, because the death sentence there is not at all a function of the jury's eligibility. the judge has tossed out that eligibility finding and substituted his own, which then leads to the death sentence. how can we say that's possibly constitutional under ring? >> because the point in ring was to make sure that no person was subject to a greater penalty than they bargained for when they did the crime without a jury finding. and in your hypothetical the jury finds there is an aggravator, so there is a jury finding that that person is --
>> the judge said that jury finding is utterly irrelevant to his decision about whether to impose death. but he's imposing death based on something that the jury has not found. >> at that point the judge's determination is separate from the selection point. the judge is exercising the discretion to sentence within -- a person who is determined by a jury to be eligible for the death penalty. >> that didn't happen here, did it? >> no, it didn't, your honor. >> you can't really tell whether that happens in a wide variety of cases. 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 able to tell whether the judge's sentence is based on the same aggravating facts that the jury has found. >> but it doesn't need to be, under ring. because once the jury has determined there is an aggravating factor or if it's been admitted, then the person is death eligible and ring is completely finished. there's nothing more to do under ring.
>> even though the jury is told, now, whatever you say, it's advisory, it's not binding, so you have made a finding of an aggravator, but it's not a binding finding of an aggravator, the jury is told whatever they say is advisory, doesn't that make a difference? >> no, what the jury is told is that its ultimate recommendation is not binding on the court. and that's true. that's one of the great benefits of florida's system. florida's system was developed in response to the court's decision in if you afurman. the court has said the florida system provides additional benefits to the defendant. >> that was before ring. >> that was before ring. we're not contesting that ring would require a finding of those elements. but once the jury makes its recommendation, even if it recommends death, the judge can override that for any reason, just based on disagreement alone, which makes it unlike the
usual -- excuse me, the usual criminal proceeding where the judge -- >> i'm sorry. is it clear to the jury that they are the last word on whether an aggravator exists or not? >> what the jury is told is that they cannot return a death recommendation without finding an aggravating circumstance. >> and they're also told that the judge is ultimately going to decide whether your recommendation stands or not. >> the judge is going to ultimately impose the sentence. that's true. that's both true under caldwell -- >> shouldn't it be clear to the jury that their determination of whether an aggravator exists or not is final? shouldn't that be clear? >> well, i don't think so, your honor, because the determination of aggravator doesn't yield a death sentence unless the judge in his or her own opinion believes -- >> i'm talking about what responsibility the jury feels.
if the jury knows that if -- 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, even just, you know -- well, you know, if you find an aggravator and you weigh it, and provide for the death penalty, the judge is going to review it anyway. >> i'm not sure that's an accurate characterization of what goes on. it's not that the judge must accept -- the aggravator determination has no purpose or no point other than determining eligibility and 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 makes no difference. >> suppose in your earlier hypothetical the judge -- the jury finds an aggravator that occurred in the course of the robbery, and therefore there is death eligibility. then it goes to the judge. and the judge says there's
simply no evidence to support that aggravating factor, but i find another aggravating factor. under your view, the judge could go ahead and impose the death penalty? >> in that instance, that's a little bit different, as i understand it, than justice kagan's hypothetical. first of all, the recommendation doesn't specify which -- but this is my hypothetical. >> okay. so to make sure i understand -- >> which honestly sounds like the same. >> i think the difference is, respectfully, includes the finding that the judge finds no evidence to support, as opposed to just disagreeing with their -- excuse me. >> and what would happen? >> if you had a situation, and again, this would be limited -- let me make sure i'm limiting the answer to the situation where the state is depending on the death recommendation. >> yes. >> which is, the minority of cases, as we've said in the brief. if the jury made a specific finding as to a specific
aggravator, again, they wouldn't be instructed on that aggravator unless there was sufficient evidence of it at the threshold stage. but if the judge concluded that there was unsufficient evidence, than he ever would have submitted to the jury, then -- >> there are two good analogies in other areas of the law. no one need ask whether six members of the jury thought there was a threat but no act l actual. i don't think so. so i support you. on the other hand, imagine a normal sentencing case. the 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 has 50 grams of cocaine. i don't think the judge could say i'm going to give you the aggravated sentence because i don't believe there was any cocaine but i do believe there was meth. >> that may well be right. that's one of the reasons the jury is not asked to find specific aggravating -- >> but we do know that the judge here now, still, your having n conceded ring, 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, and now compare that to the hypothetical of cocaine and meth, and then we have aprendi, which i disagree with still. >> i think, your honor, in the cocaine and meth example, i
believe that the court would look, as they did in jones, and say, is the legislature setting this up as distinct offences or as one offense that can be satisfied by heightened possession of cocaine or meth. >> do you think a 7-5 recommendation is finding an element of the crime that makes you eligible for the death 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 that that says a simple majority is not a unanimous jury? >> we don't say that it'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. because again, there's two things that go on in a jury
room. one, they decide whether there were aggravating circumstances. >> they don't agree with which one? we don't know whether it was premeditation or robbery. it could be 4-3 or 2-5. it could be anything. >> we're talking about in the sentencing phase, for you. >> right. >> 7-5 could well mean all 12 jurors found a robbery and all four jurors found heinous and cruel. >> what does the 7-5 tell us? >> that a majority of the minimum of the juror found beyond a reasonable doubt the existence of aggravating circumstances. >> not the same one. >> not the same one. getting back to justice breyer's point, the courts in these situations look at what the legislature, it's definition of the elements. we know as a matter of state law that the element at issue here, to take someone who is not at issue for the death penalty and make him or her eligible for the
death penalty is the existence of one or more aggravating circumstances, not a specific one. so it is like shad versus arizona where you can't say whether the jury agreed there was premeditation or felony murder. in fact that was the case at this defendant's guilt phase back in 1998. he was convicted of first-degree murder. and the guilt phase jury was instructed that they could return that 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 whether they all need to be the same or not, it would depend on -- >> do you believe that a simple majority is a jury unanimously or functionally unanimously finding that element beyond a reasonable doubt? >> there's certainly finding of beyond a reasonable doubt. we're relying on the court's decision in apodaca. >> that was 10-2.
does 10-2 automatically mean that 7-5 is okay? >> not automatically, your honor. if you look at apodaca, they were rejecting the same arguments that this petitioner is asking the court to accept, which is that the long history of unanimity should bring it into this system. because of the other protections that florida has put in place, even if it's a 7-5 vote, you still have the judge coming behind that jury who, 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 or any reason. he or she can give mercy for any reason. and that happens a lot. so we cited some 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 death penalty.
the jury heard all of the evidence, make a recommendation that he receive the death penalty, and the judge said no, i'm going to sentence him to life. and so this court -- this gets back into the jury versus judge sentencing. but there are some real benefits associated with judicial sentencing. if you go back to profitt, this court recognized the advantages of judicial sentencing because you won't have someone's life or death based exclusively on the emotions of the jury. >> can i go back to the kind of hypotheticals that justice kennedy and i were proposing. let's say a jury has been presented with evidence that the murder was for pecuniary gain, which is one of the aggravating factors. and the jury comes out with a recommendation of death. and that was the only thing that was presented to it. so you know that the jury has made a death eligibility determination on pecuniary gain. then it goes to the judge.
the judge says, you know what, i don't really think there's enough evidence of pecuniary gain, but i'm had this whole hearing and i find that the crime was heinous and whatnot, and now i'm going to sentence the person to death. now, you say that that's fine; is that right? >> well, let me -- i realize it's a hypothetical, but let me tell you why that couldn't happen in florida. a judge would not instruct a jury on an aggravating circumstance for which there was not sufficient evidence to find that. and so your hypothetical would not happen. >> well, you know, no. well, he's heard more evidence, because there's 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 anymore, but i think it was heinous. so that would be fine? >> again, that's not this case, because there was no additional evidence. >> yeah, yeah, yeah.
>> if the judge found that there was no evidence of any aggravating -- >> i'm throwing out the jury's aggravating factor. but i'm substituting my own. i thought that was what you told me, that that was constitutional under ring. >> i think it depends why you're throwing it out. as with any jury finding, if the judge finds at the guilt phase that there is insufficient evidence to find any element, he would not rely on the jury's determination. >> this is just as a matter of sentencing. let me get on with my question, because i think you answered this already. the appeal that's taken, right, the appeal is focusing now only on what the judge has found, isn't that right, under florida law? the appeal, if the person 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. >> well, if i understand the hypothetical correctly, someone is convicted, has a death recommendation, a death sentence, and is appealing to the florida supreme court.
>> and he says there was just not enough evidence of all these aggravating factors, but that would only be as to the judge's aggravating factors. it couldn't possibly be that he would challenge the jury's. >> well, the judge's aggravating factors would be detailed in a written order. but if there were -- >> i mean, i'm just suggesting 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 gets to another benefit of florida's system, is that they do have this to review. there's been some suggestion of jury sentencing as a -- >> yes, look, 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 here at the guilt phase, when he appealed, and there was an
examination of the evidence, they didn't know whether the jury found on felony murder predicate or on first-degree murder. they're reviewing the conviction, and they're reviewing the evidence that sustains it. or that may sustain it. >> to what degree is there a real dispute here about the presence of the two aggravating factors? >> there is none, justice alito, in my view. and i know that there was some argument a moment ago about the evidence suggesting that someone else may have committed the crime. we cited in our initial brief in the florida supreme court where they said without any contention, there is a two-aggravator case. it was especially heinous, atrocious or cruel. he doesn't question the seriousness of those aggravators either. his focus, instead, acknowledging all that, was proportionality review, which is another benefit of the florida system, that the florida supreme court reviews everything for
proportionality. >> can i ask two separate questions on this? >> yes. >> number one, whenever 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 him or herself? >> when someone is waiving the jury trial altogether, absolutely. of course that would be a structural error even if there were no objection. this goes more to the element of offense and the court held in washington versus aquendo that -- >> where have we ever said that not challenging something is an admission of that something? we take plenty 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 that assumption is wrong. why isn't this -- >> we've cited other portions
where they had acknowledged that back in the sentencing memorandum, the first go-round. to follow up on the question of whether there is an existence of a doubt, the iffelful supreme court found both of these existed at the post-conviction opinion, which led to the resentencing that's now on appeal here. they sent it back for resentencing not because of anything having to do with death eligibility or the establishment of aggravators. they sent it back because there was insufficient effort to produce mitigating -- >> has there ever been an appeal in florida where an advisory 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 would be surprised if there weren't, your honor. but i don't know. i'll look at that. getting back to the admission,
the evidence was clear, there's no question that there was a robbery here, there is no question that there was -- that this was heinous, atrocious and cruel. and we would ask the court affirm the florida supreme court judgment. >> thank you, counsel. mr. waxman, six minutes. >> notwithstanding this flurry of papers, i'm aspiring not to use the six minutes. let me go right to justice scalia's question, which is not a hypothetical, although i'm 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 over again, consistent with the statute, that its decision was purely adviso advisory. and i want to refer the court to the florida supreme court's decision in state versus steele. the florida supreme court in steele said, first of all, nothing in the statute, the standard jury instructions, or the standard verdict form requires a 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 aggravator applies, while three others believe that only another aggravator applies, because seven jurors believe that at least one aggravator applies. florida goes beyond that.
it is unlawful, the 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 what their, quote, input is on the sentencing factors. again, steele at page 546. specific jury findings on aggravators 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 a post-ring -- what's the date of it? >> yes, this is post-ring. the court also held that ring didn't apply. it has no jury findings on which to rely.
and in fact, the court also explained later in the decision, in the same decision, and also in its decision in franklin, that florida -- quote, florida bars the special verdict precisely because requiring specific jury findings on aggravators without guidance about their effect would harm the jury's -- 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 aggravators 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, three for one and four for the other.
as to the i think hypothetical question that justice kagan was asking, so, you know, in a circumstance, how much leeway does the judge have to make his or her own decisions on the death penalty? the florida supreme court has specifically allowed the death penalty to be imposed and a determination of death eligibility be made based on evidence that was never presented to the sentencing jury, and based on an aggravating factor on which the sentencing jury was not applied. 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 decision, in this court's daubert 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 in this case, i think i'll rely largely on our
brief. but the notion that the lawyer said, this is a two-aggravator case, is certainly true. there were two aggravators charged. and maybe the jury -- we know that the trial judge found that two aggravators 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 aggravators it was going to rely on. and he was denied on the grounds that aprendi doesn't apply. again, the central ring problem in this case, the central sixth amendment problem in this case, leaving aside the in ddertimacy which a florida jury finishes its work, there's simple 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. republican presidential candidate jeb bush is ordering an across the board pay cut for his campaign staff and is slashing travel and other costs. bush campaign officials today that payroll was being reduced by 40% with all but the most entry level staff taking pay cuts. officials say the staff shifts will help bush in iowa, new hampshire and other early voting states. two recent polls show ben carson is topping the field among republicans in iowa, pushing ahead of donald trump. next in the polls in the order of popularity is senator ted cruz. and in other campaign news, donald trump is calling on super
political action committees supporting his candidacy to return all the money they've collected. he's also calling on his opponents to demand the same. trump's campaign said friday that it sent legal notices disavowing what it describes as nine unauthorized super-pacs supporting his bid. former rhode island governor lincoln chafee announced this morning he's ending his democratic presidential campaign after failing to gain traction against hillary clinton and bernie sanders. he made that announcement at a women's forum held by the democratic national committee. we covered that announcement. you can wash it on our website, c-sp c-span.org. republican presidential can the donald trump stops in miami this evening. see his comments live on c-span 2, that's at 7:00 p.m. eastern. and texas senator ted cruz is on the road as well, holding a town hall meeting in council bluffs, iowa. c-span will have live coverage of that at 8:30 eastern.
and we'll sit down with senator cruz after the meeting so he can take your calls. again, that's tonight on c-span. c-span provides the best access for coverage of former secretary of state hillary clinton testifying before the house select committee on benghazi. >> there was no credible actionable threat known to our intelligence community against our compound. >> our hearing coverage without commercials or commentary will air in its entirety saturday and sunday at noon eastern on c-span. the heads of a number of business and hobbyist interest groups will testify before the house aviation subcommittee this month on the need for drone safety regulations. faa deputy administrator michael whittaker said his agency is creating a comprehensive set of safety rules for integrating drones into the existing u.s. airspace. this is about two hours and 15 minutes.
good morning. the subcommittee will come to order. i would like to thank everybody for being here. i ask unanimous consent that members not on the subcommittee be permitted to sit with the subcommittee at today's hearing, offer testimony, and ask questions. without objection, so ordered. today we look forward to hearing from various stakeholders on a very important topic to our country, aviation safety in the era of unmanned aircraft systems. unmanned aircraft systems, or uas, represent the latest frontier in aviation technology. while still a new industry, uas are already contributing to our economy and changing how
companies do business. across the country we already see uas used for a myriad of operations, from surveying, photography, safety inspections, medical delivery and search and rescue. with each new use, businesses and commercial users can save time, money, and even in some cases lives. but like any other new technology, uas bring new challenges as well. in the past year, pilots have been reporting sights of uas near airports at an accelerating rate. the faa received 238 reports of drone sights. in 2015, the number has already exceeded 600. safety is paramount in aviation and the increased number of suspected sightings raises serious questions and concerns. some of these reports involved airliners and occurred at low altitudes.
other reports involved pilots of general aviation aircraft in less busy airspace. the real possibility of midair collision must be taken seriously in order to prevent tragic consequences. to be also my understanding that some of these reported sightings may involve something other than a consumer unwisely operating their new gadget in a busy controlled airspace or restricted airspace. in at least some cases the reported uas may have been a government-operated aircraft, lawfully operated uas or simply a bird in flight. to that end we need to understand what precise ly is going on in our airspace, what is the actual risk and how do we manage and mitigate it. with retailers readying for significant uas purchases this upcoming holiday season, this conversation and subsequent
action cannot wait. there are real consequences if we are not cautious enough that we must not go to the extreme which could unnecessarily restrict the uas industry's growth and innovation here in the united stes because of the so-called false positive. the key is balance and i believe that this committee as well as the faa and stakeholders continue to strive for just that -- balance. the answer to these questions will be complex. though i am confident that our country can and will address them. i look forward to hearing from our witnesses and thank them for joining us today. before i recognize mr. alreadla for his comments, i ask unanimous consent all members have five legislative days to revise and extend their remarks and include extraneous material for the record of this hearing. without objection, sorderred. i'd no like to yield to mr. larson for his opening remarks. >> thank you, chairman lobiondo
for holding this hearing on aviation safety. i'm pleased we're here to address this timely topic of the safety of uas in the national airspace. the number of unmanned aircraft being sold in the u.s. is staggering. according to one industry group, the number of uas sold this year could reach 700,000. that's a 63% increase over last year. other reports suggest that figure will soon reach one million. and it will continue to grow so the natural question becomes who are flying these million plus unmanned aircraft? many, as we're going to hear, are responsible and safe users. these include serious hobbists such as those represented by the academy of model aeronautics. but unfortunately, they also include people who are not familiar with the rules of aviation or concepts of aviation safety. there are 600 plus reports of
near passes between conventional aircraft and drones so far this year. that tells us what we need to do more to reduce the likelihood of a drone ending up in the flight path of a commercial airliner with hundreds of people on board. the 600 plus pilot sighting suggested allowing anyone to fly a drone on our near the nation's airways is like letting people drive remote controlled model cars on the interstate. unless more is done, it's not if an accident will happen, it's when. staff 230u7bd pfound pilot repo some pretty scary encounters. one pilot reported he "encountered a drone that came close enough to hear the propeller noise of the drone inside my cabin. the size of the drone made it impossible to see until it was too late to take evasive action." and the list continues. in addition to risks in the air, unmanned aircraft pose risks on the ground. this year an aerial vehicle
crashed in crashed into parade goers in seattle, injuring one woman when it crashed into her head. i look forward to hearing from our witnesses today about what the faa and stakeholders are doing to address the safety risks before it's too late but we can not deny the extensive public and commercial benefits of unmanned aircraft as well. uas kb used for search and rescue, wildfire mitigation as well as inspection of bridges and other critical transportation infrastructure. the uas industry has great potential to drive growth, create jobs. one industry trade group estimates that in just ten years unmanned aircraft will create 100,000 jobs and add $82 billion in value to our economy. that's particularly important to states like my home state of washington state, a hub of aviation research and development. this committee has an enormous opportunity to be proactive, to listen to these experts today, to understand what congress can do to help keep our nation's skies safe and produce legislation about uas that will
reflect our safety agenda while doing no harm to a promising industry. the faa act of 2012 directed faa to safely integrate unmanned aircraft by 2015 and required the agency to issue regulations on small unmanned aircraft. while faa expects to issue this delayed rule next year, this action will provide regulation to safely implement primarily commercial operations. the question i hope we get at today what should congress do and what can faa do as well to ensure the safety of recreational uas operations? . some have said that section 336 of the '12 bill prohibits action to regulate unmanned aircraft and i'd caution against a broad interpretation of that provision which is krofted to apply very narrowly. in light of the safety events that have emerged this year, maybe it's time to revisit that provision. i look forward to hearing from all of our panelists today about what congress, about what the faa, and, importantly as well,
what the industry can do to keep the integration of uas on track and ensure safety. thank you. >> thank you, rick. i'd like to really thank rick larsen for the close working relationship and bill schuster and peter defazio on this very important issue we spent a lot of time with. chairman schuster is not here yet. mr. defazio, some opening remarks? >> thank you, mr. chairman, appreciate the opportunity and appreciate the fact of you convening the committee on this important topic today. yes, there is tremendous potential and commercial application of drone technology. but first and foremost we ask to establish rules that ensure the integrity and safety of our aviation system today. we have seen instances of -- mentioned by the ranking member earlier of these toy drones in
critical airspace. at this point, we don't really know what happens when you suck a quad copter into a jet engine and at my request the faa is moving forward with an evaluation. we did after an investigation in 2009 for -- 1994 pittsburgh possible bird strike they calculate add four-pound bird hits an airplane moving at 260 miles an hour, generates a force equal to 14 tons. well, you have some of these toys up there in the air that weigh that much and so what could that do if ingested? so we need to know. what are the solutions? well, clearly there are commercial application which is the faa is moving forward with. the issue i believe can be kind of drawn between toys and commercial applications. and the toys need to be restricted in terms of where they can operate.
that is, they should be programmed before they can be sold so that they can't fly in restricted airspace, they can't fly over 400 feet and anybody is who is found to have hacked that should be subject and operates irresponsibly should be subject to serious penalties and fines. i think we might also have to look at registration. i had an instance in my hometown of springfield, a peeping tom was using a little drone looking with a camera looking in people's windows. it was sighted by the neighbors and ultimately it crashed. well, the police have no idea who was operating that thing. we have no way to track it back. there should be a way to track these things back to irresponsible operators. people who are using them illegally, improperly and endangering both personal privacy and potentially save safety of the traveling public. so i think there is a lot of
work to be done, we're going to hear it today from the forest service. we had interruption in critical fire service because we had idiots flying their drones into areas where we wanted to fly aircraft into fire and they had to suspend operations. there needs to be consequences for people who do those sorts of things and i expect this committee to work with the faa to see if they have the authority to take proper action against these sort of people, whether they need new authorities and we need new regulations so that we can divide between people who are, you know, using them responsibly, whether for recreation or those who are using them responsibly and commercially and those who are the minority using them irresponsibly. a reporter last week said they expect a million of these toy
drones to sell for christmas this year. a million. how many of those million people have any idea? obviously a lot of them live in restricted airspace. what restricted airspace is and whether or not they can operate the drone there? i don't think they know. there has to be a massive educational campaign in part which should be pushed forward and paid for by the manufacturers of these toys who are profiting from their sale. with that, mr. chairman, i look forward to the. the. thank you. >> thank you, mr. defazio. i want to thank our witnesses for being here today. they are michael whitaker, deputy administrator for the federal aviation administration. james hubbard, deputy chief of state private forestry for the united states forest service. captain tim canal, president of the airline pilots association, richard hanson, director of government and regulatory affairs for the academy of model aeronautics. dr. michael