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Life after Death: Florida's jury unanimity requirement makes death penalty more elusive

The “worst of the worst” were once destined for death in Duval County, but both new and old cases show that’s no longer the case.

JACKSONVILLE, Fla. — “Justice was served. Then justice was taken away.”

That’s how the Rev. Jean Clark describes what happened June 16 when a jury spared Alan Wade’s life.

Their verdict reversed Wade’s death sentence for a monstrous crime, in which he and three accomplices kidnapped and murdered Carol and Reggie Sumner in 2005 by burying them alive.

Clark was Reggie Sumner’s baby sister, and she calls the reversal of his death sentence “gut-wrenching.” However, it’s hardly unusual. 

Wade is one of dozens of death row inmates getting a second chance at life following a 2016 U.S. Supreme Court decision that invalidated Florida’s death penalty. As a result, the state has been forced to revisit all death sentences since 2002 that came from non-unanimous juries. Prosecutors must either settle for life in prison or take the case back before a jury for resentencing.

And getting unanimous death verdicts isn’t easy – as the crucible of the Nikolas Cruz case made clear. Of 122 capital trials held since jury unanimity became law, the state has lost 64 percent of the time (66 percent of new cases and 62 percent of resentencings). Only 40 of 122 cases resulted in death.

The figures are similar in Duval County, long the deadliest county in Florida – both for its murder rate and its affinity for the death penalty. Of 16 death cases prosecuted in Duval County since 2017, the state lost nine and won six. (One of the six plead guilty, forgoing trial, then killed himself on Death Row.)

The ratio is similar for resentencings: Four death verdicts, six life sentences. Among those sentenced to life: suspected Gator Taxi serial killer Paul Durousseau; rapist and murderer James Belcher, jailhouse hitman Jecorian McCray, and Russell Tillis, convicted of dismembering a woman and burying her in his backyard.

In the case of Alan Wade, the jury didn’t even find his crime “heinous atrocious and cruel,” a bedrock element of death verdicts and a taxonomy even his own attorney concedes.

Attorney Allison Miller, who defended Wade, says, “I think most people would agree burying two people alive would constitute something that's especially heinous, atrocious, and cruel."


Prosecuting death cases, whether brand new or decades old, is enormously expensive and time-consuming for both prosecutors and the public defender’s office. It’s agonizing for victims’ families. And, from the state’s perspective, it’s largely unsuccessful.

“Capital cases are becoming fewer and far between,” says Miller, who defended Russell Tillis in addition to her work on the Wade case. She says the main factor is the unanimity requirement. “Finding 12 people who are going to agree on anything these days, let alone whether a man lives or dies, seems very unlikely.”

The State Attorney’s Office provided data for this story, but declined comment, citing pending cases.

The outrage that attended the Cruz verdict may force a change in current death penalty law. Gov. Ron DeSantis has asked lawmakers to modify the jury unanimity requirement. It’s a move that could be approved by a Florida Supreme Court shaped by his hand, despite the legal chaos that would ensue.

But as long as unanimity is the law, longtime Assistant Public Defender Al Chipperfield, says the odds are stacked against prosecutors.

“There has got to be an attitude adjustment, just in recognition of the fact that death is harder to get,” Chipperfield says. “If the defense can get just one juror to agree that death is not appropriate, then the state loses. And all that time and effort and money has been wasted."

Chipperfield credits the State Attorney’s Office with vetting old and new death cases and agreeing to life in some. (The state waived the death penalty after initially filing a death notice at least 33 times.)

But, with four death cases on his plate in 2023 -- and 24 currently pending in Duval County -- Chipperfield thinks there are still too many. Because death cases demand the most experienced lawyers, they are pulled from the Public Defender’s regular case load. He calculates those lawyers “could handle 100 or more run-of-the-mill felony cases in the time it takes to prepare a capital case.”

There is also an incalculable human cost. Though all death cases are painful for victims, resentencings carry a particular sting, resurrected years after they were thought resolved.

Often, victims are called again to testify.

Ricky Embry, who found his sister Jennifer’s strangled and sexually battered body in the bathtub of her Westside town home, cried as he testified at James Belcher’s resentencing in September, 26 years after the crime.

 “It was devastating,” he said as graphic crime scene photos flashed on courtroom monitors. “It was very painful, what I seen.”

The Sumner family, too, again endured photo exhibits of the couple’s exhumed bodies. Jean Clark delivered her fifth victim impact statement, and she is now bracing for two more trials – Wade’s accomplices Michael Jackson and Tiffany Cole. The fourth, Bruce Nixon, cooperated with prosecutors originally and received a life sentence.

“It’s opening up and unveiling before our eyes of all the past and all the hurt and what my brother and my sister-in-law went through," said Clark. "To sit through all that, and see their deteriorating bodies as they dig them up…” she trails off. “It happened four times in the first trials, and now it's going to happen three more times.”

The process is so painful, some relatives refuse to attend -- including the Sumner’s daughter, who first reported them missing.  

Under Florida’s crime victim Bill of Rights, survivors are entitled to be notified of “all post-conviction processes and procedures” in a defendant’s case. In death cases, that can last through years of appeals. Victim advocates fought for and champion access to the information, but the effect can be wearing – even without a resentencing.

“I don't pretend to have the ability to tell people to grieve,” Miller says. “But I do know if you never want to hear this defendant’s name again, it's not through the death penalty process. Give this person life in prison, they'll be locked away. You'll never hear about him ever again.”

That’s not an option for Clark, and she’s not interested in settling for life sentences. She plans to attend all the trials to demand justice for Reggie and Carol. 

But she admits the Alan Wade verdict makes that prospect even more grim.

“After this last one, you know -- open it all up, and for what? You know -- what good, what good is it gonna do?”


Of 16 death penalty cases prosecuted in Duval County since 2017, the state won six and lost nine. Looking just at old cases coming back for resentencing, the ratio is similar: The state won four and lost six.

The state also waived the death penalty after initial filing a death notice in at least 33 cases.

There are 24 death penalty cases currently pending in Duval County. Those include Wade's accomplices Tiffany Cole and Michael Jackson.

  • DEATH 

Raymond Bright (resentencing, death) 2017

Rodney Newberry (resentencing , death) 2018

John Mosely (resentencing, death) 2019

Randall Deviney (resentencing, death) 2021

Donald Smith (guilty, death) 2018

Donald Davidson (pled guilty, death) 2019

  • LIFE 

Keith Collins (resentencing, life) 2018

Paul Durousseau (resentencing, life) 2021

Rasheem Dubose (resentencing, life) 2021 

Justin McMillian (resentencing, life) 2022

James Belcher (resentencing, life) 2022

Alan Wade (resentencing, life) 2022

James Jackson (guilty, life) 2018

Russell Tillis (guilty, life) 2021

Jecorian McCray (guilty, life) 2022

*Numbers compiled using data from the- 4th Circuit State Attorney's Office and The Balanced Justice Project at Florida International University's College of Law  




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