Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office
By Ross Parker
ticklethewire.com
The U.S. Supreme Court will begin its 2015-2016 term with oral arguments in October on three tough cases on capital punishment from the minority of states which still maintain a de facto death penalty.
In Kansas v. Carr, Gleason, the issues presented involve the trial judge’s instruction to the jury and the question of joinder and severance for two defendants during the sentencing proceeding. Carr and Gleason were brothers who were convicted of a series of brutal rapes and murders during a crime spree in Wichita, Kansas in 2000. There was little doubt as to the result of the guilt phase of the trial.
During the death penalty hearing the judge denied the defendants’ request for severance of their cases. The defendants’ case of mitigation was in the words of the Kansas Supreme Court, “so weak it would not pull the skin off of rice pudding.” Although the evidence was not openly antagonistic between the two defendants, the appellate court later speculated that some of the evidence may not have been admitted against both defendants if there had been separate proceedings. The jury’s verdict was death.
The Kansas Supreme Court affirmed the convictions but reversed the sentences as a violation of the 8th Amendment prohibition against cruel and unusual punishment. The joint proceeding deprived the defendants of an individualized sentence determination. The court went on to hold that the trial judge should have instructed the jury that the defendant need not prove mitigating circumstances beyond a reasonable doubt. Instead, the judge had instructed that each juror should assess and weigh the mitigating circumstances.
Predicting the Court’s decisions in the emotion-packed morass of death penalty cases is never easy but not as difficult as divining the rationales of each Justice to support her/his vote. Separating the ultimate result from the nuance of the legal issue without distorting the evolution of the case law in non-capital cases has been a tortured exercise for decades. The defendants point to little concrete harm that resulted from the joinder, but this seems the better issue for them. The instruction issue seems less persuasive.
Hurst v Florida
The following week, October 13th, the Court will hear the case of Hurst v. Florida on whether its previous case of Ring v. Arizona should be extended to void the Florida practice of making the jury’s sentence verdict as only advisory to the trial judge, who makes the decision on a penalty of death, as well as issues on how the jury goes about deciding the advisory verdict.
Timothy Lee Hurst was convicted of the brutal murder of a co-worker in a Popeye’s Fried Chicken restaurant in Escambia County Florida in 1998. The psychologists testified that Hurst’s IQ was between 69 and 78 and therefore not ineligible for the death penalty as being “retarded.”
The jury’s advisory verdict to the trial judge did not identify which “aggravators” they found or whether a majority agreed on a single theory. They voted 7-5 to recommend death. This procedure leaves open the possibility that less than a majority agreed on a single aggravating circumstance, which would justify the jury’s recommendation. The trial judge conducted his own hearing on the issue and ultimately sentenced Hurst to death.
The Supreme Court in Ring held that whether the State has proven beyond a reasonable doubt the necessary aggravating circumstance warranting a death verdict is an issue of fact finding for the jury to determine. It did not spell out whether that decision had to be binding on the sentencing judge or how the jury was to go about the process. The case left some knotty issues: whether the jury’s role could be in the form of an advisory opinion to the trial judge; whether individual jurors could use different theories of aggravation; and whether the vote of a majority of the jury was a constitutionally adequate verdict.
Florida death penalty litigation has been a fertile ground for death penalty opponents. The state may want to allow Texas to devise the statutory system since Texas has been so much more efficient and successful at imposing and upholding its death verdicts and administering the fatal drug combination.
It is hard to believe that the Supreme Court will uphold a system in which all three of the potential issues left over from Ring have coalesced. Justice Breyer has already made clear his own views that only juries can decide to impose a death verdict. Both he and Justice Ginsburg have called for the Court to accept a case on the issue of the constitutionality of the death penalty itself.
Montgomery v Louisiana
The third capital sentencing case for October, Montgomery v. Louisiana, did not ultimately result in a death penalty but life without parole imposed on a juvenile. Henry Montgomery was a 17 year old African American 11th grader with an IQ in the 70s who shot and killed a white Sheriff Deputy in East Baton Rouge, Louisiana in 1963. With crosses burning in the neighborhoods and the KKK actively promoting racial tension, Montgomery was convicted and sentenced to death without any opportunity to present mitigating circumstances during a sentencing proceeding.
The Louisiana Supreme Court reversed, he was re-tried, convicted and automatically sentenced to life imprisonment without possibility of parole. Montgomery is now 69 years old and has been in prison for 52 years.
In 2012 the Supreme Court in Miller v. Alabama held that sentences of mandatory life without parole for defendants under the age of 18 violated the 8th Amendment. But the Court has never decided whether Miller should be applied retroactively.
Retroactivity in criminal procedure cases is determined by a 1989 Supreme Court case called Teague v. Lane, whose rule requires the finding either that the decision involves a new substantive rule of criminal constitutional procedure or, if procedural rather than substantive, whether the case implicates fundamental fairness and accuracy of the criminal proceeding.
These are slippery concepts and there are those who think that the Justices first decide the end result of the case from a policy perspective and then apply the Teague rule accordingly. The equities of the Montgomery case weigh on both sides of the balance. A law enforcement officer was killed, but a half century has passed since the defendant killed him. For my money, once you decide to make the sentence unavailable for minors (whether you agree with this policy or not), to make it not applicable to cases after 50 plus years seems fundamentally unfair.
Three cases with thorny legal issues to be decided under the rule of law as part of a larger agonizing debate about whether we should have two systems of punishment in this country, one by the vast majority of states which have concluded for various principled and practical reasons to abolish the death penalty, and the other in a handful of states which have concluded that the ultimate penalty of death is necessary for their system of criminal justice. Anomalies will always exist in a federal system but few seem so profoundly perplexing.
