A jury of six women and six men and two alternates–a man and a woman–was seated shortly after noon today, a day and a half into jury selection in the sentencing trial of convicted double-murderer David Snelgrove.
Snelgrove, 47, was convicted in 2002 for the murder of Glyn and Vivian Fowler, a long-retired couple living at 82 Bannbury Lane in Palm Coast. He was twice sentenced to die. He is going through a sentencing trial for the third time.
The sentencing trial is the first of its kind in Flagler County since both the state and U.S. supreme courts ruled unconstitutional the system that had previously sentenced Snelgrove to die. The 12-member juries split 7-5 and 8-4 in those death recommendations. The U.S. Supreme Court ruled in 2016 that a recommendation for death had to be unanimous. The state supreme court has ordered a slew of new sentencing trials for defendants on death row, Snelgrove among them. Another such trial, for Cornelius Baker, on death row 11 years for a murder in 2007, is scheduled for February.
Snelgrove’s trial begins Wednesday at 9 a.m., before Circuit Judge Kathryn Weston. The jury will be asked to answer one question: should Snelgrove be put to death? The alternative isn’t acquittal. It’s life in prison without parole–an option Snelgrove’s defense presented to the judge 18 years ago, saying it would spare years of uncertainty, court proceedings and costs. The judge, Kim Hammond, turned down the motion. The proceedings and uncertainty haven’t stopped since.
It’s not just been a constitutional wrangle over the death penalty. The heart of Snelgrove’s defense has always been his mental disability. It will be again in the days ahead.
The jury faces several days of testimony, mostly from the same individuals who have testified since the murders, and for the defense, from experts and family members who will testify to Snelgrove’s disability. That disability is not in question. What’s in question is how profound it is. That matters, because it is unconstitutional to execute a mentally disabled person, no matter how heinous the crime. But defining the cut-off line has been a challenge.
Snelgrove’s disability throughout his years in the criminal justice system has bobbed in a gray zone that indisputably raises reasonable doubt about his mental capacities even as the system itself has moved the goal posts on him repeatedly, as legal standards of mental disability have tried to keep up with scientific standards.
Hammond himself spoke of the challenge when Snelgrove was up for his second sentencing trial in 2008 (because of a verdict-form error in the first). Six days before the jury found again for death, Snelgrove had just been evaluated by a psychologist, who found him to have an IQ of 70. This was six years after a U.S. Supreme Court ruling that had ruled it unconstitutional to execute people with mental disabilities. But the high court had not defined mental disability. It left that up to the states. Florida set a hard line: anyone with an IQ of 70 or above could be executed.
“Since Mr. Snelgrove is borderline, you know, right at the 70 range, more investigation needs to be done,” Hammond said at the time. “No more testing needs to be done, but more investigation needs to be done around his life because [the psychologist has] got to determine if there’s any deficits in the adaptive functioning areas. And he–before he can determine whether or not Mr. Snelgrove is actually considered retarded, he needs to investigate these adaptive function areas.”
The need for that history has been acknowledged even by the judge, but one of the obstacles Snelgrove’s defense teams have faced all along has been the lack of documented history such as school or medical records. That vacuum leaves him more vulnerable to conclusions about his mental abilities as a younger person based on extrapolations.
Five years ago the U.S. Supreme Court again ruled on the IQ issue, saying that Florida’s cut-off was unconstitutional, because a hard line with IQ scores is not realistically accurate. Florida “relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise,” Justice Anthony Kennedy wrote for the majority. Florida had to allow for variability in the scores, a recognition of the American Psychological Association’s and the American Association on Intellectual and Developmental Disabilities’ position that IQ tests have an error margin of about ten points.
In other words, had that scientific conclusion been evident at the time of Snelgrove’s first sentencing trial, the panel of 12 jurors may have had even more difficulty getting to a majority. Had there been no majority and had the jury recommended life in prison without parole, the state could not have retried the case no matter what. Yet it is getting to do so for the third time–a legal gray zone that may itself become the next line of appellate attacks by defense lawyers in similar circumstances.
On Monday, Assistant State Attorney Jennifer Dunton, who is prosecuting the case with Assistant State Attorney Mark Johnson, asked for yet another evaluation of Snelgrove as the maneuvering over his mental capabilities continues. That was a further indication of what “mitigating” factors the defense will seek to avoid a death sentence.
Michael Nielsen, Snelgrove’s attorney, explained to the jurors a set of important nuances they’ll be contending with as they deliberate: to impose a death sentence, the jury must find the existence of at least one “aggravating” factor. They may present more than one. But each aggravating factor must be proven beyond a reasonable doubt. And the jury must find unanimously that each aggravator has been proven beyond a reasonable doubt. It cannot split on one and be unanimous on the two others, for instance.
Conversely, the defense will present mitigating factors, such as Snelgrove’s mental disability. But those mitigating factors don’t have to be proven beyond a reasonable doubt. They may only be found to exist by “the greater weight of the evidence,” a lower standard.
A few of the 48 jurors who formed what was left of the jury pool this morning (it had started with 61) had wavered or changed their mind: they could not see themselves recommending death no matter what. One of them had heard a very brief snippet about Snelgrove’s case on the radio this morning, but enough to hear that the case has been dragging for two decades. That alone, he told the judge and the lawyers, was enough for him to decide that, in this case, he could not agree with a death recommendation.
All those waverers and opponents were excused. Because Florida law allows the death penalty, jury selection allows the lawyers to stack the deck: no one who declared himself or herself opposed to the death penalty was chosen. But several who were dogmatically in favor of the death penalty were also excused–not just because the defense didn’t want them there, but because the prosecution was not looking for dogmatists so much as for individuals willing to weigh evidence with objectivity and modesty rather than preconceived certainties.
Of course, jurors can lie: they can and do at times tell lawyers what they want to hear during jury selection, and it’s up to the lawyers, using their experience and roundabout questions (such as Nielsen’s polling every single potential juror about his or her ownership of guns, how many guns, what the guns are used for) to find the 12 they need.
Toward the end of his question period, Nielsen asked the jury pool of 48 how many had seen “12 Angry Men,” the 1957 Sidney Lumet movie shot entirely in a jury deliberation room as Henry Fonda’s character, in a Marc Anthony act of his own, goes from being the lone and reviled dissenter on what appeared to be the obvious guilty conviction of a young defendant to persuading all 11 to vote not guilty.
Despite a demographic that suggested most in the pool had accumulated a few decades of television watching, only two hands went up–and one knew the story in its details. Nielsen had asked the question to make a point: ” “Do you think that you’d be able to maintain your position and not necessarily to give in and get it over quick, or give in to peer pressure and things like that?” he asked the jurors. They answered affirmatively, but in unconvincing mumbles.
“I know you understand the seriousness” of the case, Nielsen, who speaks in a mournful tone of voice, told the jurors, moments after describing their task ahead as “a pretty awesome responsibility.”