ORLANDO, Fla. — Prosecutors in the case against Markeith Loyd are asking the judge to step aside for the death penalty phase of his trial, citing a recent unexpected ruling that would allow jurors to see video of the convicted cop killer being beaten by police during his 2017 arrest.
In a motion filed Wednesday, prosecutor Ryan Williams argued the ruling by Circuit Judge Leticia Marques, which reversed a prior decision that evidence and testimony about the beating would not be presented to the jury, lacked legal justification and left the state’s strategy “in shambles.”
“The State and its prosecution team fear they will not receive a fair hearing in the penalty phase of this matter,” Williams wrote.
If the motion is granted, another judge would preside over the trial’s penalty phase, at which the jurors who last week found Loyd guilty of first-degree murder in the Jan. 9, 2017, killing of Orlando police Lt. Debra Clayton are to decide whether to recommend his execution or life in prison.
The penalty phase had been slated to start Saturday, but that changed last Friday when Marques indicated during a hearing that Loyd and his defense team would be allowed to present some evidence and testimony about the injuries he suffered at the hands of law enforcement.
In a written order Tuesday evening, Marques ruled Loyd’s defense attorneys will be allowed to present a police helicopter video that shows Loyd crawling out of an abandoned house in Carver Shores before surrendering himself to law enforcement.
Loyd had shot and killed Clayton nine days earlier, when she tried to arrest him for murdering his pregnant ex-girlfriend.
Despite Loyd having tossed aside two handguns before he crawled to the street, four OPD officers punched, kicked and hit him with their rifle muzzles. The beating caused Loyd to lose an eye — but the officers were cleared of criminal wrongdoing and exonerated of excessive force claims.
Marques also ruled Loyd’s attorneys would not be allowed to argue to jurors that the beating was a form of “extrajudicial punishment,” as they did during a hearing earlier Tuesday at the Orange County Courthouse.
“Extrajudicial punishment is not mitigation and is only intended to inflame the jury’s passions,” Circuit Judge Leticia Marques wrote in her order. “(Loyd) has already testified that he believed that law enforcement wanted to kill him and he may testify to that. The Defense may argue his beliefs.”
The judge’s ruling said Loyd’s attorneys would also be prohibited from showing jurors “needlessly inflammatory” photos of Loyd’s injuries or video of his interrogation, in which investigators insulted and cursed at Loyd while he asked for medical treatment.
The defense can, however, present witness testimony as to who caused Loyd’s injuries and about the delay in providing him medical attention, Marques ruled, while adding that her order was “not a license to engage in a series of unsubstantiated critiques of law enforcement.”
The judge had banned Loyd’s attorneys from presenting evidence of his beating during both the guilt and penalty phases of his trial. But Marques said she changed her mind after Loyd testified about his lifelong fear of police officers, who he believes kill Black people without reason or repercussions.
Williams, in his Wednesday motion to disqualify Marques, argued prosecutors relied on the judge’s ruling in deciding what — and what not — to ask Loyd’s jurors about during jury selection.
“Accordingly, the State did not inquire of jurors as to their feelings on law enforcement’s use of force beyond whether or not they possessed knowledge the Court indicated, correctly, would disqualify them as jurors,” he wrote.
While Loyd’s defense had asked Marques in a motion to reconsider her ruling on the beating evidence, Williams wrote that the judge relied on her own rationale, rather than the defense’s argument, in reversing course to allow the video and testimony into the penalty phase.
Williams argued Marques acted similarly in another murder case: that of Juan Rosario, who was convicted of murder in 2018 for the killing of 83-year-old Elena Ortega five years earlier. Jurors in Rosario’s case unanimously voted that he should face execution, but Marques ruled that the killer’s attorneys were ineffective and ordered a retrial of the penalty phase.
That decision was overturned by an appellate court, which found she had reached her conclusion based on her own observations and failed to give prosecutors an adequate opportunity to address them.
“(T)he State cannot overlook this second occasion where (Marques) ... made arguments on behalf of a capital defendant given the State’s desire to seek a fair hearing for the victim in this case, her survivors, and the citizens of our State,” Williams wrote in his new motion.
Loyd’s penalty phase is currently slated to begin Nov. 29.
The 12-member jury plus alternates, who were staying at a hotel during the first part of the trial, will no longer be sequestered in the penalty phase. Jurors must make a unanimous verdict recommending the death penalty before a judge can sentence Loyd to face execution.
Loyd has already faced the possibility of capital punishment once.
He was convicted of first-degree murder in 2019 for killing his ex-girlfriend Sade Dixon and her unborn child, but he avoided the death penalty after jurors recommended he be sentenced to life in prison without parole.
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