I found this very informative article about the penalty phase and may shed some light in what might happen in missy's :jail
it's long, but interesting, IMO).
-----------------------------
.."
Moderator: These penalty-phase-only retrials must seem odd to the new jurors.
The judge instructs them that they have to abide by the guilty verdict, yet they have not heard any of the evidence of guilt. Plus, it will soon come out when the date of the offense is revealed that the case is yearssometimes decades old. What help do jurors get in understanding the strange posture of the case?
Defense Attorney Britt: I always file a motion to preclude that a death sentence was found at the first trial. That is always granted. But I think the jurors all understand the case has been reversed and sent back, although that is not told to them in any waythey figure it out. So in theory they do not know, but really they do.
Defense Attorney Kerns: That is true. The jury is not supposed to know it is coming back for resentencing. However, it is hard for them not to know. For instance if the crime occurred in 1976 and the new jurors are sitting in 1998, they must be asking themselves, How come I havent read about this is the paper? The jury is not fooled.
Prosecutor Laeser: I agree also. The jury has to be told in very gentle terms that another jury has already heard the trial evidence. If the judge says, I dont want the jury to know hes been on Death Row for fifteen years, you have to fashion your statements around that. But the dates have not been excised, so the jury knows something is up. My assumption is that there are not twelve people stupid enough not to figure out he has been sentenced to death before. ..
Defense Attorney Kerns: Under Florida procedure, even a seven-to-five vote for death results in a death recommendation to the judge. So it is very important for the defense to ascertain in voir dire how much the jury knows about the first sentencing case. Specifically, do they know how the first jury foundthat is, a unanimous verdict, as opposed to a split verdict?
----------
Moderator: Prosecutors, how do you try to get the jury up to speed on the guilt/innocence facts? Obviously, you want to do more than simply present the prior verdict form showing the conviction. But do you need to re-present all the guilt/innocence phase evidence, to the extent it is still available?
Prosecutor Laeser: In Florida when a case is sent back for resentencing, both parties start from square one, except for the fact of conviction. Indeed, the prosecution can even prove additional aggravating circumstance(s) beyond what it presented at the original trial. Under Florida law, we do not labor under the hearsay rule at the penalty phase, so in a penalty-phase-only retrial, I can put on summary witnesses. I can use a lead investigator to summarize parts or all of the investigationthis is important because it limits the cross-examination the defense can do. So I could put up a very bare bones case, but I do not do that. Strategically, I put on as much evidence as possible. To convince a jury that a death sentence is appropriate is a difficult task. I have to put on as many important witnesses as possible. I have to pull emotional heartstrings. This takes a huge amount of pretrial preparation. Usually it is a very old case; witnesses memories
are not all that sharp. You do not like to refresh their recollection in front of a jury. So it takes a lot of witness preparation...
Prosecutor Laeser: Even though the jurors are told they have to assume guilt, some jurors are very hesitant to accept someone elses finding. Some feel they have to be absolutely certain of guilt before assessing a death sentence. As a practical matter, we usually do present enough evidence to persuade them, but we do not take anything for granted...
Defense Attorney Gelman: You cannot challenge a finding of guilt, although you can subtly try to inject some doubt. But it is usually better not to because the prosecutor can really slam you on that. Plus, I do not think it is likely to be effective to try to get this jury to say the first jury made a mistakethat is just not going to happen. So you proceed with the assumption that they have been convicted and try to show more mitigating circumstances than aggravating. ..
Defense Attorney Silver: I think trying the penalty phase to a new jury may give the defense a slight advantage in contesting the aggravators, over the original trial. It would be very hard to attack the aggravators right after you had just tried and lost the guilt/innocence phase of a trial that included the aggravating evidence. If you started trying to water down what they heard, I think the jury will resent you. But before a new jury, it is possible for the defense to present evidence concerning
why the crime is not as bad as it seems. You are telling the jury, Im not asking you to say hes not guilty, just that there is something about the crime that is not that horrible. It is a difficult balancing act...
Prosecutor Hawkins: I think mitigation has to really stand out for juries to take note...
http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/McCord-PDF-11-29-04.pdf
