Quintuple Murderer Sees Opening in Split Death Sentence Decision

In a cramped county jail cell in Doral, Tavares Calloway has been awaiting his sentence for 13 years.

On Wednesday, a jury finally recommended death for his murder of five Liberty City drug dealers in 1997.Seven jurors decided the crimes were too heinous to give him life, but five disagreed.

His attorney, Sydney Smith, says that bare majority is enough to spare his 31-year-old client. And thanks to a recent Supreme Court decision, and Florida's kinky judicial system, he might be successful in his argument.

In 2002, the Supreme Court decided  juries in most states must be unanimous when issuing a death sentence. But Florida is one of a handful of states - Nebraska and Alabama are among the others - where sentencing is two-pronged: a jury makes a recommendation and a judge uses it to sentence the convict.

Many juries come back with the kind of split decision they delivered for Calloway, says Richard Dieter, director of the Death Sentence Information Center.And since the Supreme Court hasn't taken up a case with a mixed sentencing system, he thinks there's room to challenge that bare majority on the basis of the 2002 decision."Lawyers routinely make these kind of challenges, even if you expect to lose," he says. "If you don't raise it, you're presumed to have waived it."

The split decision is itself a product of Florida's wonky judicial system. Calloway has been in county jail for so long because canny defense attorneys can take years collecting evidence and taking depositions as part of the discovery process.

In a story last week, New Times found that Calloway was just one of nine men who've been in county jails for more than a decade. The longer a trial lasts, the more ambivalent a jury can be later.That's clearly what happened Wednesday.

The jury that convicted him in July took six hours to come back with a sentence recommendation, Smith said. "In my experience juries usually come back quickly. This was more lengthy than usual," he said. "It's obviously something they all spent a long time debating and thinking about."

When Smith appears before Judge Dava Tunis, he'll argue the jury saw the bigger picture and decided his client was worth sparing. "Five people decided that he should live. It would only require one for life literally anywhere else," he says.

Attorneys have to meet in two weeks to decide on a sentencing date. Until then, Calloway will remain at Metro West Detention Center.

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Erik Maza