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    His gamble lost, getaway driver wants new trial

    Prosecutors say a murder defendant is blaming the judge after accepting a split jury's decision - for conviction.

    By WILLIAM R. LEVESQUE, Times Staff Writer
    © St. Petersburg Times
    published May 1, 2002

    LARGO -- He gambled and lost, and now prosecutors say Anthony A. Lanza is acting like a sore loser.

    Lanza, on trial for first-degree murder, asked a judge Monday to let him waive his right to a unanimous jury verdict.

    The jurors had said they were deadlocked, and Lanza, facing life in prison, guessed a majority of them favored acquittal. He was wrong, and he was convicted and sentenced to life in prison.

    On Tuesday, Lanza's attorney filed a motion for a new trial, saying the judge made a mistake in granting Lanza's wish to waive his right to a unanimous verdict.

    "They want to blame someone other than themselves for their poor choice," said prosecutor Bruce Bartlett. "They initiated this. They insisted on it. They got burned. So now they're trying to blame the judge."

    Lanza's court-appointed attorney, Maura Kiefer, said that isn't the case at all. But Kiefer said she will argue that the process the judge followed in granting her client's wish wasn't followed properly.

    For one thing, she said, case law suggests the waiver can't be granted after a jury indicates by what vote it is deadlocked. In this case, jurors told Judge Nancy Moate Ley they were deadlocked 11-1, though they didn't say whether they favored acquittal or conviction.

    Kiefer said she had another legal reason to challenge the judge's decision. But she declined to discuss it before a hearing scheduled for May 23.

    "The fact is, there's a legal way to do this and there is a nonlegal way," said Kiefer. "Reversible mistakes were made."

    Prosecutors say Lanza was the getaway driver in the 1998 robbery of a Subway sandwich shop in South Pasadena in which a clerk was shot and killed.

    Legal experts say criminal defendants in Florida rarely waive their rights to a unanimous verdict. But they say case law supports a defendant's right to do so, if the court strictly follows certain guidelines.

    Most important, the decision must be the defendant's alone. And the decision must be made free of coercion or any promise regarding the outcome. And the judge must fully explain the potential consequences of giving up that right.

    "Defendants waive constitutional rights all the time," said University of Florida law professor Christopher Soobogin, noting that defendants often represent themselves and waive the right to be represented by an attorney. "Every time a defendant confesses, they're waiving the right to remain silent.

    "Obviously, it's a real roll of the dice," he said of Lanza's decision. "Unless you think your lawyer has presented a pretty slam-dunk case, it's usually not a good idea."

    Though lower courts have supported a defendant's right to waive a unanimous verdict, case law is incomplete. Neither the Florida nor U.S. supreme courts have written a decision about waiving the right, Soobogin said.

    "I think regardless of what the trial court did, this is going to be reviewed carefully by an appellate court," said Robert Batey, a professor of criminal law at Stetson University College of Law.

    Some attorneys would rather take a chance at a second trial after a hung jury, believing that anything can happen.

    They point, for example, to the first-degree murder trial of Carlos Bailey and James Higgs Jr., who both faced life in prison.

    After a jury in 1999 deadlocked 11-1 in favor of convicting the pair in a St. Petersburg killing, a judge declared a mistrial. Before Higgs could be retried, prosecutors offered him a plea deal for a lesser charge. Higgs took the deal and got 15 years.

    Last year, Bailey was retried and acquitted.

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