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3787
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MARVIN MANDEL, Governor
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recommendation, the jury retires for further
deliberations and is nonetheless unable to agree on
either of the two permissible recommendations, then
arguably any one of the following results could obtain:
(1) the jury could be sent back under
specific instructions that it must return a
majority recommendation of a life sentence
(or that the court will be required to
impose such a sentence) if the jury is
unable to make the unanimous decision for
imposition of the death penalty; (2) the
trial judge could declare that the failure
to produce a permissible recommendation
results in a hung jury and order a rehearing
on sentencing before a new jury empaneled
for that purpose; or (3) the judge could
discharge the jury for having failed to make
a recommendation, and proceed to impose
sentence in the absence of a recommendation
and based upon the record adduced at the
sentencing hearing.
He reject the first of these three alternatives for
the simple reason that there is nothing whatsoever in the
statute to suggest that a life sentence recommendation or
the imposition of a life sentence must automatically
follow if the jury is unable to recommend death. 9 We
reject the second alternative because Senate Bill 106
specifically calls for the sentencing proceeding to take
place before the "trial jury" unless the trial jury has
been waived or the defendant has pleaded guilty. Except
for these two instances, no provision is made for the
empaneling of a jury other than the trial jury; even when
a case is remanded following appeal for resentencing,
that resentencing is to be determined by the trial judge
and not by a newly empaneled jury. 10 We are persuaded
that alternative #3 represents the appropriate course of
action in a hung jury situation. We base this conclusion
on the fact that while the involvement of a jury, and in
particular the trial jury, in the sentencing proceeding
is important, its recommendation is advisory only and the
trial judge is clearly empowered to impose a sentence
other than the one recommended. We believe that the
clearly advisory nature of the jury's recommendation
strongly supports a conclusion that the trial judge
should be free to impose sentence if the jury is unable
to provide a valid recommendation. 11 While the Supreme
Court has noted the important societal function performed
by jury sentencing, it has also expressed the view that
judicial sentencing offers certain advantages in a
capital punishment scheme. Proffitt v. Florida, 96 S.
Ct. at 2966.
Having expressed this conclusion, we must hasten to
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