pageok
pageok
pageok
Brown v. Sanders:
The Roberts Court has handed down its first 5-4 opinion today in a death penalty case, Brown v. Sanders. The case involved permissible jury instructions in capital cases, and specifically whether a new trial is warranted if one of several aggravating factors found by the jury is later held to be invalid. The Court reversed the Ninth Circuit's decision and held that no new trial was constitutionally required: Justice Scalia's opinion was joined by Justices O'Connor, Kennedy, Thomas, and Chief Justice Roberts. Justices Stevens, Ginsburg, Breyer and Souter dissented, and would have held that the sentence was unconstitutional.
classmatewearingyarmulka (mail) (www):
The Supreme Court reversed a 9th Circuit decision yet again. Break up 9th Circuit!
1.11.2006 1:03pm
steve k:
It's depressing when the Court splits so predictably along political lines.
1.11.2006 1:05pm
John Jenkins (mail):
Why is that? From the cursory facts above it looks like a clear case of harmless error and a retrial is not warranted.
1.11.2006 1:10pm
Matt Barr (mail) (www):
I hardly think it's fair that Stevens gets to vote twice. (Sorry, I couldn't helkp myself)
1.11.2006 1:18pm
Reg Jones:
Assume 2nd Stevens-> Breyer?
1.11.2006 1:19pm
Dresden Slammer:
Stevens is a Super Justice
1.11.2006 1:29pm
RichC:
No. He's a Super-Duper Justice :)
1.11.2006 1:37pm
VC Reader:
I think I read in the Supreme Court rules that you getto vote twice once you reach a certain age.
1.11.2006 1:55pm
AK (mail):
So John Paul "Super-Duper" Stevens gets two votes. That's simple enough to understand.

But it's about to get much more confusing. What happens when Alito is confirmed, and the Unholy Scalito Alliance votes? How many votes do they get?
1.11.2006 1:59pm
EricP:
You would think that given the honor of two votes, he wouldn't split them up that way.
1.11.2006 2:01pm
Nobody Special:
I thought that split opinions, like this 5-5 one, were supposed to affirm the lower court.
1.11.2006 2:03pm
VC Reader:

But it's about to get much more confusing. What happens when Alito is confirmed, and the Unholy Scalito Alliance votes? How many votes do they get?

In situations in which the general consensus on this blog is that Scalito has voted properly then they get a combined total of three votes. When the consensus goes the other way, Scalito only gets one vote.
1.11.2006 2:15pm
Cornellian (mail):
Could Super-Duper Stevens split his vote, and thereby end up writing both the majority and dissenting opinions?
1.11.2006 2:23pm
Sasha (mail):
I _so_ do not understand this "second Stevens" gag.
1.11.2006 2:28pm
Anderson (mail) (www):
Justices Stevens, Ginsburg, Stevens, and Souter dissented, and would have held that the sentence was unconstitutional.
I don't follow this. Stevens's dissent says the question before the Court was simply where CA fell in the weighing-or-not regime previously used by the Court, and thus implies that the Court went beyond what was properly before it. He notes that he "might well have concluded that the error here was harmless" had the issue been before the Court.
1.11.2006 2:38pm
GMUSL 2L (mail):
Sasha, Orin forgot Breyer but sure didn't forget Stevens and Stevens, J.J.
1.11.2006 2:38pm
John Jenkins (mail):
The gag comes from:
Justices Stevens, Ginsburg, Stevens, and Souter dissented, and would have held that the sentence was unconstitutional.
Obviously he left out Breyer as GUMSL 2L noted, but we're having a little fun at Prof. Kerr's expense.
1.11.2006 3:07pm
Sasha (mail):
GMUSL 2l &John Jenkins: Thanks, never mind!
1.11.2006 3:29pm
OrinKerr:
Ooops.
1.11.2006 3:49pm
blackdog:
Good thing O'Connor didn't go the other way; otherwise, it would fuel the nonsensical "you're upsetting the balance of the Supreme Court" argument Judge Alito's detractors continue to advance.

Of course, if these individuals are so fervently in favor of maintaining "balance," I guess this opinion means they are now more in favor of Judge Alito, who would have presumably taken the same position as O'Connor in this case. Right?

Right??
1.11.2006 3:54pm
Anderson (mail) (www):
Judge Alito, who would have presumably taken the same position as O'Connor in this case. Right?
No, Alito would've concurred in the judgment and argued for an even more "conservative" holding.
1.11.2006 4:28pm
John Jenkins (mail):
Just as soon as you can define what would have been a more conservative holding that would not have had said more conservative writer joining the dissent, I'll buy that (this decision actually looks a little radical, throwing away the weighing/non-weighing state framework and adopting a single test).
1.11.2006 4:55pm
cfw (mail):
John:

"this decision actually looks a little radical, throwing away the weighing/non-weighing state framework and adopting a single test"

This looks like a "hard cases make bad law" scenario. No Justice put anything on the record about how accused is not just one of those "murderers," as opposed to a real person (abused as a kid, mentally crippled, drug addicted, badly represented, etc.) who happened to commit a pretty simple murder (apparently a customer killing his drug dealer's girl friend).

If all cases come to the USSCT like this (with nothing more than a technical instructions-based argument in favor of a new trial), California habeas lawyers are in for some hard times.

Who cares about burglary instructions or "cruel and heinous" instructions compared to the aggravating factors that came through (witness killing and robbery)?

Looks like the accused was lucky to get as far as he did - winning at 9th Circuit on a pretty technical issue.

The more troubling things in my mind are how does one distinguish this one-body (drug dealer girl friend?) murder case from something more serious? How is this out of the ordinary as murder cases go? The case is a bit radical in that it approves death without any evidence or discussion about whether the accused and the crimes are truly the "worst of the worst" amongst killers and their acts that cause death.

Losing the ability to argue for a "do over" based on burlary and robbery and witness killing and "cruel and heinous" vs. same facts but two less aggravating factor labels seems like no great loss for habeas counsel. But trend away from any "reality check" by anyone at the USSCT about egregiousness is troubling.
1.11.2006 6:38pm
John Jenkins (mail):
When you figure out a good technical definition for "heinous, atrocious and cruel," let me know; I'd love to see it. I am not sure I understand your issue here. The procedural posture of the case permitted SCOTUS to decide the issue on appeal: whether the subsequent invalidity of 2 of 4 DP factors rendered the DP verdict constitutionally infirm.

The decision in this case is that, no, it doesn't, and by the way all of that stuff about weighing and non-weighing states, we didn't mean it and here's a new test (one might be a little troubled by applying the going forward standard to a prior case, but let's not talk about that).

SCOTUS doesn't hear evidence; it gets a record and some briefs. Just becuase the opinion doesn't talk about what happened doesn't mean the prosecutor didn't and the briefs almost certainly did.

I don't understand what you mean by a "reality check" about egregiousness. Do you mean egregiousness of the defendant's conduct; or egregiousness of procedural errors (which the dissent wanted to get into; they seemingly wanted to do harmless error analysis, which I think would have gotten the same result)?
1.11.2006 7:53pm
cfw (mail):
"When you figure out a good technical definition for "heinous, atrocious and cruel," let me know; I'd love to see it."

I agree, as does the USSCT, I believe.

"I am not sure I understand your issue here. The procedural posture of the case permitted SCOTUS to decide the issue on appeal: whether the subsequent invalidity of 2 of 4 DP factors rendered the DP verdict constitutionally infirm."

I call it hard because defense had no gripping fact-based issues. Not much that could be done for Sanders, the way these Justices describe the case.

"The decision in this case is that, no, it doesn't, and by the way all of that stuff about weighing and non-weighing states, we didn't mean it and here's a new test (one might be a little troubled by applying the going forward standard to a prior case, but let's not talk about that)."

USSCT does not get too hung-up on retroactivity in habeas cases. I agree that is what the Court said.

"SCOTUS doesn't hear evidence; it gets a record and some briefs. Just becuase the opinion doesn't talk about what happened doesn't mean the prosecutor didn't and the briefs almost certainly did."

This is a perfect opinion for prosecutors. Makes it look ok to make pretty much any murder case a DP case, yes? If the briefs had good facts for the defense, of the traditional sort, where are they? Since Furman, machinery of death has been supposed to winnow out "normal" murders and focus the DP just on the lowest of the low, multiple killers, killers like Bonin, Manson, etc. Did that happen here? Not in my view. If the machinery does not throw this case out, is it really working as it is supposed to?

"I don't understand what you mean by a "reality check" about egregiousness. Do you mean egregiousness of the defendant's conduct; or egregiousness of procedural errors (which the dissent wanted to get into; they seemingly wanted to do harmless error analysis, which I think would have gotten the same result)?"

Egregiousness in the facts of the crime (such as three separate kiling at three separate times) - a sort of self defense rationale - we need to kill this person to keep him from killing again. At least some facts that make this case look worse than the run of the mill murder. How is this not like lightning hitting Sanders? Most veteran homicide prosecutors can probably point to 10 cases they have had themselves, and dealt for far less than death, with facts no worse than these.

That Scalia points to nothing egregious is not too surprising - he is ready to kill on an eye for an eye basis, I suspect. That no other justice calls him on it seems troubling. It means the machinery designed to make the DP more significant than just a random lighting strike has ceased to operate and no one at the USSCT seemed to notice.
1.11.2006 9:23pm
John Jenkins (mail):
If a murder in California is committed during the commission of any of the crimes listed in Cal. Penal Code §190.2(17). Both robbery and burglary in the first degree are listed crimes. If you have a complaint, it's not with SCOTUS, but with the California legislature who made death or LWOP the only penalties for murders committed during the commission of those other crimes. I'm not sure why you consider this a random strike or anything similar. The statute is quite clear.

Perhaps your complaint is with the jury who FOUND those aggravating factors to be true (the robbery and burglary). OTher states have the same or similar statutes (I know for sure that Oklahoma does at 21 Okla. Stat § 701.7). The aggravating factors on which the death sentence stands (now) have nothing to do with the heinous nature of the crime, but the simple fact that the murder occurred during the commission of two other violent felonies.

As to prosecutors dealing; if it's a case wherein they could file a bill of particulars, in my (admittedly biased) experience the only thing that a D.A. will take is an LWOP deal. If they deal on a case wherein a bill could have been filed, they must have thought the case was awfully weak (or they are especially beneficent prosecutors).
1.11.2006 10:42pm
cfw (mail):
John:

"If a murder in California is committed during the commission of any of the crimes listed in Cal. Penal Code §190.2(17). Both robbery and burglary in the first degree are listed crimes. If you have a complaint, it's not with SCOTUS, but with the California legislature who made death or LWOP the only penalties for murders committed during the commission of those other crimes."

I see this as both a Cal legislature and a USSCT problem. A narrowing function is supposed to be performed. With "lying in wait" for 1 second, I understand the Cal Supremes will ok a DP for a murder. It look like there is pretty much no murder that cannot be tried as capital in CA. The USSCT has said that not all murders should be triable as capital. They should abide by the string of cases since Furman that call for narrowing, or admit they are throwing them out, eh?

"I'm not sure why you consider this a random strike or anything similar. The statute is quite clear."

The statute is clear, true. The ligthing strike is apparent, from the opinion alone, since this is a simple felony murder, with one body. Tellingly, Scalia makes no comments on the seriousness of injury to girlfriend, or other criminal episodes of Sanders (if any). Compare this to a few years ago when Scalia would go out of his way to point out the gruesome details (putting underpants in the young victim's mouth, etc.). What message does this send to the ambitious prosecutor bucking to become DA? It says most any murder he or she gets assigned can be charged and prosecuted as capital, and Scalia et al are on-board.

"Perhaps your complaint is with the jury who FOUND those aggravating factors to be true (the robbery and burglary). OTher states have the same or similar statutes (I know for sure that Oklahoma does at 21 Okla. Stat § 701.7)."

Finding of "during robbery" by the jury seems fine. Not sure I see "witness killing" except based on gymnastics by the Cal Supremes about what witness killing means (any murder with another victim injured, eh?). The HCV aggravator was so vague it was not a basis for any meaningful finding.

"The aggravating factors on which the death sentence stands (now) have nothing to do with the heinous nature of the crime, but the simple fact that the murder occurred during the commission of two other violent felonies."

This went down to one felony, robbery, as I recall the opinion. My point is the aggravatging factors allowed are too numerous. What sort of murder can you imagine that cannot be tried as capital in CA? Is that ok that we greenlight willy-nilly prosecution of capital cases, depending on which prosecutors happen to have funds and political ambitions? That is the freakish lighting strike aspect of the jurisprudence arising again, eh?

"As to prosecutors dealing; if it's a case wherein they could file a bill of particulars, in my (admittedly biased) experience the only thing that a D.A. will take is an LWOP deal. If they deal on a case wherein a bill could have been filed, they must have thought the case was awfully weak (or they are especially beneficent prosecutors)."

Given the scenario outlined by Scalia, without more about history of crimes or extent of injuries to girlfriend, I doubt that most California DA's would ok this case for capital treatment between 2000 and now (at least before this case was decided). LWOP is a lot less than death, in my view.
1.12.2006 11:07am
John Jenkins (mail):
"Sanders was convicted of first-degree murder, of attempt to murder Boender, and of robbery, burglary, and attempted robbery." From part I of the majority opinion. That's two felonies listed as aggravating factors (robbery &burglary) as well as two others, plus the murder.

No second degree murder is eligible for the DP. Only those cases of first degree murder where the aggravating factors are found are eligible for DP.

It sounds like you disagree with the law and want SCOTUS to effectuate your desire rather than uphold the law. The California scheme is entirely consistent with precedent. You also seem to want them to have gone WELL beyond the question presented on appeal, which they typically will not do. Even defense appellate counsel apparently decided against making your argument that the crime didn't deserve death because, well, the trier of fact decided otherwise.

You can debate whether certain crimes ought to be DP eligibile, but so long as the statutory scheme is consistent with the constitutional caselaw on the subject (and California's is), you're argument is with the folks in the statehouse, not the courthouse.
1.12.2006 1:00pm
cfw (mail):
""Sanders was convicted of first-degree murder, of attempt to murder Boender, and of robbery, burglary, and attempted robbery." From part I of the majority opinion. That's two felonies listed as aggravating factors (robbery &burglary) as well as two others, plus the murder."

You mean aggravating in the non-statutory sense, yes? I agree those are the circumstances of the crime. The actually charged and proven aggravating factors were killing a witness and robbery, yes?

"No second degree murder is eligible for the DP. Only those cases of first degree murder where the aggravating factors are found are eligible for DP."

This is true. It is also the case that a state statute that says any murder (above voluntary manslaughter) is punishable by death is unconstitutional, under precedent since Furman, yes?

"It sounds like you disagree with the law and want SCOTUS to effectuate your desire rather than uphold the law."

I would say you have a (prosecutor's?) narrow view of the law. The law includes the cases from the USSCT since Furman , true? Even if things fit the statute, the statute can be wrong under the 8th, 5th and 14th, right?

"The California scheme is entirely consistent with precedent."

This is not agreed.

"You also seem to want them to have gone WELL beyond the question presented on appeal, which they typically will not do."

The USSCT grants cert for particular questions it wants addressed. Here, either they granted too narrowly or overlooked the pernicious implications of the Scalia opinion, in my view. This could have been poor lawyering from California habeas counsel, but I doubt it. I suspect the federal district court trial judge was less than cooperative.

"Even defense appellate counsel apparently decided against making your argument that the crime didn't deserve death because, well, the trier of fact decided otherwise."

I can pretty much guarantee they did argue, at least to the district court, that the statute did not adequately narrow. That is routine in CA. Just because the USSCT did not pick up that point for review and discussion does not mean Scalia was "on the ball" in my view.

"You can debate whether certain crimes ought to be DP eligibile, but so long as the statutory scheme is consistent with the constitutional caselaw on the subject (and California's is), you're argument is with the folks in the statehouse, not the courthouse."

Which precedent do you have in mind that addresses the "CA statute does not adequately narrow" argument? It may have come up and been decided, but I did not notice that. If it did, I suppose I have a "the USSCT is making mistakes" concern. I realize that is not a technical legal argument, but it could still be historically or politically or sociologically correct (meaning supportable), yes? You do not contend that anything and everything rising above the level of voluntary manslaughter is properly tried as capital, do you?
1.12.2006 2:36pm
John Jenkins (mail):
You're mistaken. My background is in indigent defense in the county in the U.S. that I would guess files more DP cases per capita than any other (Oklahoma County, Oklahoma).

I just don't think that the statute or its application are unconstitutional. Given the presumption of constitutionality, the burden lays on one who is asserting uncostitutionality to prove it.

Given there exists a [large] class of murders [second degree] where the DP is not acceptable and the (admittedly long) list of factors in the California statute that are the ONLY ones that are elibigle for the DP, that is entirely consistnent with the narrowing requirement.

You think the California list is too broad. That issue was not raised on appeal.

The questions presented were:
1. Is the California death penalty statute a "weighing statute," meaning the state court is required to determine that the presence of an invalid special circumstance, as part of one factor in the sentencing phase, was harmless beyond a reasonable doubt as to the jury's determination of the penalty?
2. If the first question is answered affirmatively, was it necessary for the state Supreme Court to specifically use the terms "harmless error" or "reasonable doubt" in determining that there was no "reasonable possibility" that the invalid special circumstance affected the jury's sentence selection? 2005 WL 1811404.


That is all that was briefed and argued. Everything else is ancillary and was not raised.
1.12.2006 3:53pm
Neal Lang (mail):
Justice Scalia's opinion was joined by Justices O'Connor, Kennedy, Thomas, and Chief Justice Roberts.

Hmmm! Every Catholic on the Court voted "thumbs down"! When Justice Alito joins the Supremes, there will be a "Catholic Majority".
1.12.2006 11:55pm
Neal Lang (mail):
Interestingly, had Judge Robert Bork been confirmed he would have been in lieu of Kennedy. As Bork has converted to Catholicism, the "Catholic Majority" would not have changed - but would have been certainly more reliabily "strict constructionist".
1.13.2006 12:05am
cfw (mail):
John:

Note that the "questions presented" are issues tendered by Brown (Warden), not Sanders.

In writing his opinion, Scalia could have (but did not) talk about the lack of any prior Sanders convictions, scope of injuries to boy friend, timing of offenses, finding of actual intent to kill (if any), etc.

Lack of any proper statutory narrowing became more of a subject for litigation here (by re-hearing, I suppose) once Scalia et al. decided to throw out the weighing state restrictions on how death decisions are made in CA.

Barring USSCT rehearing, the "where is the narrowing?" issue remains open at the 9th on remand, yes?

Robbery/murder is arguably not narrowing here because that sort of felony murder does not require actual intent to kill - cracking once on the head with a pool cue during a robbery would suffice, I suspect, even with no actual intent to kill.

That leaves witness murder as the only special circumstance. Properly construed, that special circumstance arguably is killing a witness at least a decent interval after the first crime. If Sanders cracked A on the head and then B on the head 2 minutes later, it looks like all one occurrence, as opposed to a crime and then a cover up murder, yes?

These are not necessarily arguments that one would bet the farm on, but maybe not out of the question in the 9th Circuit at the habeas level in a DP case.

The policy question you seem unwilling to tinker with is how does one sort this body of USSCT, federal law out to make sure only the "way above voluntary manslughter" cases get DP treatment?

A few narrowing cases, for those who might care:

Godfrey v. Georgia, 446 U.S. 420 (1980)
The Court overturned a death penalty conviction because the aggravating circumstance that a murder was “outrageously or wantonly vile, horrible and inhuman,” is unconstitutionally vague in that it encompasses almost every murder and fails to guard against the arbitrary and capricious infliction of the death sentence.

United States v. Cheely, 36 F.3d 1439 (9th Cir. 1994)
The Court held that imposition of federal death penalty for mail bombing was unconstitutional, as statute applied even where the defendant’s intent was only to injure property, and thus did not genuinely narrow class of persons eligible for capital sentence. The Court recognized Cheely’s standing to challenge the death penalty provision as a whole under Furman even though he had intended to kill a person, not to damage property.

Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995)
Mentioning that California’s construction of felony murder special circumstances requiring that the murder be intended to advance an independent felonious purpose is not merely a nicety of state law, but rather meets the Furman constitutional requirement of genuinely narrowing those who deserve to be considered for the death penalty and those who do not.

Cal Supremes tend these days to approve most any DP cases, despite "where is the narrowing?" issues. Local prosecutors seem to be informally narrowing the "gate," at least in CA.
1.13.2006 8:31pm