Death Be Not So Complicated
A death sentence may be the final act of a murder trial, but for the U.S. Supreme Court, it often seems like just the beginning. The justices sometimes review a death sentencing hearing decades after it took place.
They also may review and rule more than once on the same legal issue in a state’s sentencing law. On occasion, they do so in the very same case.
In this term of the court, the justices can check off “all of the above.”
This month, the court will hear four death penalty cases, all involving sentencing hearings that took place more than 15 years ago. Three come from Texas and arise from defense complaints that the state’s law before 1991 did not allow the jury to weigh mitigating evidence.
A fourth comes from Arizona, where prosecutors are complaining that the the San Francisco-based 9th U.S. Circuit Court of Appeals has been far too willing to overturn death sentences. In Schriro v. Landrigan, No. 05-1575, for which arguments took place Jan. 9, the appeals court pointed to the trial lawyer’s failure to introduce mitigating evidence, even though Jeff Landrigan told the sentencing judge he did not want any presented. (See Schriro v. Landrigan briefs.)
None of the cases raises a doubt about the guilt of the convicted murderer. They focus only on the fairness of the sentencing hearing.
But in all the cases, the petitioners express frustration with a lower court that either can’t or won’t get it right. While the 9th Circuit has been unfriendly territory for state prosecutors in capital cases, the New Orleans-based 5th Circuit has been just as unfriendly to defense lawyers seeking new sentencing hearings for their clients.
If the law on sentencing is confused, the high court itself bears part of the blame. It has been closely split on death penalty cases, and some of its narrowly decided opinions have left the door open for differing interpretations in the lower courts.
That division was on display in November in the term’s first decision, Ayers v. Belmontes, No. 05-493, a 5-4 reversal of the 9th Circuit in a death penalty case that dates back a quarter century. It also was the second time the case came before the high court.
In March 1981, Fernando Belmontes armed himself with a steel dumbbell bar before breaking into the home of 19-year-old Steacy McConnell. He clubbed her over the head about 20 times and left with her stereo, which he and two accomplices sold for $100.
The next year, a California jury convicted Belmontes of murder and heard aggravating evidence during the sentencing hearing. For example, he had a record of violent crimes, including an assault on his pregnant girlfriend a month before the murder.
The jurors also heard Belmontes had embraced Christianity behind bars, and a chaplain testified he believed the defendant would adjust well to prison. The jurors were read a long list of factors they could weigh in deciding life or death, including, finally, “any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime.”
That phrase caused confusion. Some said it allowed jurors to consider all the facts that might call for leniency. Others said it closed off consideration of evidence that did not focus on the crime, such as a religious conversion behind bars.
In 1983, the California Supreme Court changed the phrase, telling jurors instead to consider “any other aspect of the defendant’s character or record” that might call for life in prison, rather than death.
But the change came after Belmontes was sentenced to death. The state courts upheld his sentence nonetheless, as did a federal district judge. But the 9th Circuit, in a 2-1 decision, reversed his sentence and said there was a reasonable probability that jurors would have spared Belmontes had they been free to give leniency based on his “future conduct” behind bars.
When state prosecutors first petitioned the high court, the justices vacated the 9th Circuit’s decision and said it should be reconsidered under a 2005 ruling—Brown v. Payton, 544 U.S. 133—that restored a death sentence for another California murderer who converted to Christianity behind bars. Undeterred, the 9th Circuit panel reaffirmed its decision.
When state prosecutors appealed again, the Supreme Court granted the appeal and reversed the 9th Circuit. In Belmontes, both the majority and dissent engaged in mind reading. Justice Anthony M. Kennedy, speaking for the court, said it was “improbable” to believe the jurors heard the testimony about Belmontes’ religious conversion and ignored it. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. agreed.
In his dissent, Justice John Paul Stevens said, “I simply cannot believe that the jurors took it upon themselves to consider testimony they were all but told they were forbidden from considering.” Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer agreed with him.
WEIGHING MITIGATING FACTORS
The upcoming Texas cases raise similar concerns. Before 1991, Texas jurors were asked to give a yes or no answer to two questions: Was the killing deliberate, and does the defendant present a “continuing threat to society”? The high court gave its blessing to this statute in 1976, even though it appeared to leave no room for mitigating evidence. Jurek v. Texas, 428 U.S. 262.
But when faced in 1989 with a mentally retarded defendant on death row, the court said, in a 5-4 decision, the Texas statute was unconstitutional because it did not tell jurors they may give leniency based on the evidence that Johnny Penry was mentally retarded and was abused as a child. Penry v. Lynaugh, 492 U.S. 302.
Less than two years later, LaRoyce Smith was convicted of murdering a Taco Bell manager in Dallas. The jury had been told he was 19 at the time, had an IQ of 78 and had a father who was a drug addict. The judge had said the jurors might give weight to any mitigating circumstances, but only by answering no rather than yes to one of the questions. Smith was sentenced to die.
The Texas Court of Criminal Appeals, the state’s high court for criminal cases, upheld the sentence, but in 2004 the Supreme Court reversed the decision in a 7-2 per curiam ruling. While the high court did not give Smith a new sentencing hearing, its opinion cited a “broad and intractable problem” with the Texas law before 1991 because jurors could not give “full effect” to mitigating evidence.
Nonetheless, when the case went back to Texas, the Court of Criminal Appeals reaffirmed Smith’s death sentence and said the error, if there was one, was harmless. Last year, four former U.S. appeals judges—John J. Gibbons, Timothy Lewis, Abner Mikva and William A. Norris—joined Texas defense lawyers in urging the court to take the case again and to make clear the lower courts may not “flout” its rulings. Arguments in Smith v. Texas, No. 05-11304, took place Jan. 17. (See briefs.)
The same day, two other Texas death cases will be heard, Abdul-Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, No. 05-11287. Both defendants had their claims rejected by the 5th Circuit. (See briefs.)
Like Smith, both were convicted of murders prior to 1991 and sentenced to die by jurors who answered yes to the two key questions. Defense lawyers have been unable to win a new sentencing hearing in federal court.
At first, the 5th Circuit refused to hear the claims of unconstitutional sentencing if the defendants, unlike Penry, were unable to show they were mentally retarded. The Supreme Court rejected that rule as unduly restrictive in a 6-3 decision. Tennard v. Dretke, 542 U.S. 274 (2004). Following that ruling, the justices granted a petition from Jalil Abdul-Kabir—formerly Ted Cole—and told the 5th Circuit to reconsider it.
Undeterred, the 5th Circuit upheld the death sentence again and said the jurors in his case were able to give full effect to his mitigating evidence.
In their petition, defense lawyers accused the 5th Circuit of having “refused to yield to the letter or the spirit of this court’s decisions,” casting doubt on the fairness of the Texas scheme.
“It’s an odd situation for the Supreme Court to spend so much time on a statute that is more than 15 years old,” says University of Texas law professor Jordan Steiker, who is working on all three Texas cases. He says as many as two dozen other Texas death cases may depend on the outcome in the Supreme Court.
“The court also wants to ensure that its opinions matter,” Steiker adds.
David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.
