TAMPA, Fla. — On Tuesday, a Polk County jury spent most of the day deciding if Marcelle Waldon would spend life in prison for murdering former Lakeland City Commissioner Edie Henderson and her husband David, or if he would be sentenced to death.
That jury ultimately voted 11-1 in favor of recommending death.
But this may not be the end of the road for Waldon.
His attorney, Daniel Hernandez, is eyeing a deeper issue with the current structure of deciding between life or death in Florida.
"There's a lot to appeal. Obviously, the number one issue is the fact that the original when this case started, that requirement was for the death penalty, it had to be. It had to be unanimous," Hernandez said.
That all changed April 20, 2023. Governor Ron DeSantis signed a bill allowing a yes from only 8 of the 12 jurors to recommend death, instead of making it a unanimous decision.
Tony Montalto pushed for that change.
"My family in particular and several others from Parkland, we fought to change that law," he said.
The legislation came as a response to Nickolas Cruz, the Marjory Stoneman Douglass High School shooter. Despite parents and loved ones pushing for Cruz to get death for murdering 17 in his killing spree, he was sentenced to life after jurors failed to come to a unanimous agreement.
"One of the worst things was finding that the jury in Broward County found some way to justify the troubled existence of the shooter, while not taking into account that he gave my daughter Gina and the other victims no such right," he added.
Hernandez believes that only cases that were opened after the new statute should be allowed to have a divided jury.
He said anything else violates the ex post facto law: a law that imposes a new or increased punishment on a crime that occurred before the law took effect, ultimately causing a shift in the judicial process.
"The entire issue is being litigated with the appellate courts. This case is not the only one," he said.
ABC Action News looked into just how many people this could impact.
On the Florida Department of Corrections website, it shows the Department of Corrections has officially received five inmates on death row since April of 2023. That doesn't include Waldon since he hasn't been officially sentenced by a judge.
Litigation attorney Melanie Kalmanson explained this could impact much more than just those five.
"You have cases that were pending resentencing from Hurst v. Florida in 2016 that could be affected," she said.
To Kalmanson, this confusion is very similar to Hurst v. Florida. That's the case that sparked her interest in the death penalty.
"I clerked at the Florida Supreme Court from 2016 to 2019, when the U.S. Supreme Court decided Hurst v. Florida, and said that the way Florida had sentenced people to death up until that point violated capital defendants' right to jury trial for the sixth amendment," she said.
Kalmanson operates a blog surrounding the death penalty. She also teaches a course about it at Florida State University.
She said what we need now is a determination from the higher courts.
"We have seen some indication from courts across the state that there's definitely a split on how courts feel about this statute," she added.
Meantime, those who fight against the death penalty see it as another flaw in the design.
Abraham Bonowitz, the Executive Director for Death Penalty Action, points to how this new change could mean many more death sentences.
"The system is broken. Florida leads the nation in wrongful convictions. People have been exonerated from crimes that sent them to death row and freed because it turns out there was no evidence against them in the first place," he said.
But until we get an answer on how the law is to be interpreted, it's all up to individual judges and how they instruct their juries.
