By BRAD DICKERSON
Defense counsel for Joshua Lee Altersberger will have one more chance to argue for life in prison for their client.
Attorneys on both sides will be back in Judge J. Michael Hunter's courtroom Friday in Bartow for a Spencer hearing. It comes more than one month after a jury made a 9-3 recommendation of death for Altersberger, following his admission of guilt for the Jan. 12, 2007 murder of Florida Highway Patrol Sgt. Nicholas Sottile during a traffic stop.
Assistant State Attorney Steve Houchin said he is allowed to make legal arguments, but cannot present additional evidence. The hearing is basically the "defense's show."
"We can cross examine, but some limited cross examination," Houchin said. "We'll just play it by ear."
Most Spencer hearings are generally composed of legal argument or a minimal amount of additional evidence, according to Houchin.
"Usually, the defense is going to put everything they've got on in front of the jury to try to get a good recommendation, because if they win that, there is no next stage," he said.
Houchin said Altersberger's defense counsel has indicated it wants to put on quite a bit of additional evidence at Friday's hearing. Houchin said he was not certain what that evidence was and that the defense was not obligated to tell him.
"It appears to be factual matters," Houchin said. "Some cops here have been subpoenaed; a woman who drove by and saw part of the incident on the side of the road got subpoenaed."
Once the hearing is complete, Houchin said Hunter will take all the evidence and arguments under advisement and set another hearing in the future, where the final decision will be handed down.
The judge is supposed to give the jury's recommendation "great weight" when working on his ruling, according to Houchin.
The hearing is named for Leonard Spencer, who was sentenced in 1989 to death after a jury found him guilty of two counts of first-degree murder and multiple counts of armed robbery. In 1993, he appealed to the Florida Supreme Court, which led to the state's high court reversing the convictions and granting a new trial.
One of the issues the court looked at occurred during jury selection, when the judge excused potential jurors on the basis of IQ, according to the ruling. Defense counsel objected to the use of an IQ standard.
"There is no legal basis for excusing a juror based on the trial judge's arbitrary evaluation of the juror's IQ," the ruling stated.
After the trial ended, Spencer filed a motion for a new trial. A hearing date was set to address that motion, as well as the sentencing.
The scheduled time for the hearing came and went, and neither the judge nor the state attorney appeared, according to the ruling. The defense attorney went into the judge's chambers and found the judge, the state attorney and an assistant proofreading an order sentencing Spencer to death.
Spencer's attorney, "voiced his concern that the judge had drafted an order expressing his reasons and conclusions for imposing the death penalty prior to Spencer's counsel having an opportunity to be heard," the ruling stated.
The defendant felt the communication between the prosecution and the judge was the "culmination of a pattern of judicial bias."
Florida Supreme Court justices, in their ruling, addressed a previous case where they directed that written orders for death must be prepared before announcing sentence to the defendant.
"However, we did not perceive that our decision would be used in such a way that a trial judge would formulate his decision prior to giving the defendant an opportunity to be heard," according to the ruling.
The justices then established a procedure to be used in the sentencing phase, which included the trial judge holding a hearing to give the defendant and his or her counsel the opportunity to be heard and an opportunity to present additional evidence.