Whether Florida's application of harmless error review to a unanimous jury recommendation of death violates the Sixth Amendment right to jury trial as established in Hurst v. Florida

QUESTION PRESENTED Ray Lamar Johnston was convicted of first degree murder and sentenced to death under an unconstitutional capital punishment system in the State of Florida. Following this Court’s decision in Hurst v. Florida, 136 8. Ct. 616 (2016), the Florida Supreme Court has ruled that if an advisory panel recommended the death penalty by a 12-0 vote, like in the instant case, the denial of the Sixth Amendment right to jury trial was harmless beyond a reasonable doubt (simply because of the unanimous recommendation from the advisory panel). Following this Court’s decision in Hurst, Florida is currently operating under the following postconviction framework: someone who committed three separate murders (including an unsuspecting Cab Driver, an unwitting Good Samaritan, and a dispatched Sheriff's Deputy murdered with his own service weapon) would get Hurst relief. This would be based on three 11-1 advisory panel recommendations (because the errors were presumably harmful based on the non-unanimous recommendations; see Johnson (Paul Beasley) v. State, 205 So 3d 1285, 1290 (Fla. 2016)(“we cannot conclude beyond a reasonable doubt that the Hurst [] sentencing error would have been harmless beyond a reasonable doubt.”). Yet someone who committed just one murder, like Mr. Johnston in the instant case, and received one 12-0 death recommendation would not receive Hurst relief (because the errors were presumably harmless based on the unanimous recommendation). See King v. State, 211 So. 3d 866, 892 (Fla. 2017)(“We reach this conclusion based on in light of the i unanimous jury recommendation.”). Following this Court’s decision in Hurst, Florida counts advisory panel recommendations rather than facts of the crime or the number of victims to determine who on Florida’s death row receives life in prison, and who receives a lethal injection. Florida now also uses the date June 24, 2002 to determine who lives or dies. A defendant with a mere 7-5 death recommendation would still be executed if his case was final on or before June 23, 2002. Acknowledging presumptively harmful errors, Florida still refuses to grant Hurst relief in the really old cases. The instant case is a single murder, post-Ring unanimous death recommendation. To assist the state courts in understanding that the errors at trial were harmful rather than harmless, Petitioner Johnston enlisted the assistance of trial Dr. Harvey Moore. In 2017 Dr. Moore and his associates at Trial Practices, Inc. conducted a content analysis of the trial transcripts in this case to identify violations of Caldwell v. Mississippi, 472 U.S. 320 (1985). Due to the unconstitutional nature of Florida’s advisory capital punishment scheme that existed at the time of this trial, sound sociological and scientific evidence has documented sixty five (65) Caldwell errors in the trial transcripts in this case. See Dr. Moore’s report at