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Supreme Court Reverses Ninth Circuit in AEDPA Case:
A post titled "Supreme Court Reverses Ninth Circuit in AEDPA Case" is sort of like a post titled "Sun Rises in East Today" or "Sunny and Warm in San Diego"; it describes an event so common it's hard to make it sound newsworthy. Still, I thought I would point out today's 5-4 decision in Uttecht v. Brown, a death penalty case considering whether the state trial judge had properly ruled that a particular individual in the jury pool was ineligible to serve on a capital jury. Justice Kennedy wrote for the majority, joined by Roberts, Scalia, Thomas, and Alito; in their view, the trial judge acted within his discretion in striking the prospective juror. Justice Stevens dissented, joined by Souter, Ginsburg, and Breyer. The lower court opinion by Judge Kozinski, joined by Reinhardt and Berzon, is here.
Colin (mail):
Do you think that Kozinski's authorship of the appellate opinion make this reversal more noteworthy?
6.4.2007 1:32pm
anonVCfan:
Justice Stevens's personal shout-out to Judge Kozinski at the end of his dissent was interesting:

Judge Kozinski's opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell's opinion in Darden and by Justice Rehnquist's statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.

Justice Stevens often adds a rhetorical flourish to his death penalty dissents, but I thought this one was interesting.
6.4.2007 1:33pm
ATRGeek:
FYI, I gather that Stevens actually read his dissent from the bench.
6.4.2007 1:40pm
Anderson (mail) (www):
Actually, a 5-4 reversal is a bit more newsworthy; it's the 9-0 per curiam decisions that resemble the weather report.

Without having read the ops, and being sympathetic to the Stevens excerpt above, I still have to say: how can one draw a bright-line rule?

And if one can't, then the discretion has to be left to the trial judge, the one who's there &hears the tone of voice of the juror, sees the face and gestures, etc.
6.4.2007 1:45pm
Justin (mail):
Anderson,

It all to me just seems like good arguments to "stop tinkering with the machinery of death." The (theoretical, not practical) due process/equal protection concerns with the fact that your typical capital murder jury is far more conservative than your typical noncapital murder jury are simply enormous.
6.4.2007 1:53pm
ATRGeek:
Anderson,

But as far as I can tell there is nothing in the record to indicate that the trial court made its decision on the basis of the juror's demeanor. That makes this a very tricky case, because as Stevens rightly points out, if it was just a matter of the juror personally possessing the views that he expressed on the record, that would appear to be insufficient grounds for cause to dismiss. And the majority does seem to rely heavily on the defense's failure to object when that was not required by Washington law.
6.4.2007 2:04pm
MikeC&F (mail):
I think the snarkiness is entirely unwarranted in this case. First, it was 5-4. In light of changes in recent Court personnel, it could have been a 5-4 affirmance just a couple of years ago.

Second, Judge Kozinski wrote the opinion. I don't know many (any, actually) who consider him a pro-criminal-defendant activist.
6.4.2007 2:18pm
c.f.w. (mail):
Death penalty jury selection is a huge advantage for the prosecutor - like having a jury that must be made up with wolves, for a rabbit defendant, when the actual population from which the jury venire is selected is say 50% rabbits.

Perhaps the states inclined to a middle road in death cases should change their jury selection rules to disallow any questioning about pre-existing willingness to vote for death (or inclination to vote against death regardless of circumstances). With more truly random jury selection, prosecutors would be less inclined to ask for death - and less likely to get death sentences in the less egregious cases.
6.4.2007 2:39pm
Anderson (mail) (www):
But as far as I can tell there is nothing in the record to indicate that the trial court made its decision on the basis of the juror's demeanor.

That is, I think, beside the point. If EVERYTHING made it into the record, then the appellate court would be in a much better position to second-guess and reverse.

The whole point of discretion, IMHO, is that the appellate court *knows* that the transcript is only an approximation of what happened, and that the trial court knows best what went on.

"When in doubt, defer to the trial court" is a venerable rule.
6.4.2007 3:00pm
Peter Young:
One of the things that bothered me about this horrible majority opinion was that the lack of objection of the defense appears to have been a lack of objection to the juror rather than a lack of objection to the prosecution's challenge to the juror.

BEGIN EXCERPT FROM TRANSCRIPT

THE COURT: [Juror Z], let me have you step back into the juryroom. The bailiff will excuse you from there injust a few minutes. Thank you.
Counsel, any challenge to this particular juror?
MR. MATTHEWS: I would, your Honor, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable doubt standard. But I think he is very confused about the statements where he said thatif a person can't kill again, in other words, he's locked up for the rest of his life, he said, basically, he could vote for the death penalty if it was proved beyond a shadow of. And I am certainly going to concede that he means beyond a reasonable doubt. And if a person kills and will kill again. And I think he has some real problems with that. He said he hadn't really thought about it. And I don't think at this period of time he's had an opportunity to think about it, and I don't think he said anything that overcame this idea of he must kill again before he imposed the death penalty or be in a position to kill again. So, that is my only challenge.
MR. MULLIGAN: We have no objection.
THE COURT: Counsel, the request of the prosecutor'soffice, we will go ahead and excuse [Juror Z].

END EXCERPT FROM TRANSCRIPT

The majority opinion reads this as lack of an objection to the juror's excusal rather than as a response to the court's initial question ("Counsel, any challenge to this particular juror?") and thus as only a lack of objection to the juror. It appears to me that defense counsel was taking his turn to respond to the court's question; certainly that is a possibility sufficient to preclude pouncing on it as agreement with the prosecutor's position. But the majority opinion, failing to note even the possibility of an ambiguity, concludes he was agreeing with the prosecutor's challenge to the juror. It says: "Before the trial court could ask Brown [the defendant] for a response, the defense volunteered, 'We have no objection.'" It ignores the fact that the court's initial question had been addressed to "counsel" generally.

Although Washington state law required no objection to preserve the claimed error, the majority opinion used this alleged lack of objection to the juror's excusal to support upholding the excusal of the juror (in ways you will have to read the opinion to understand).

But my concern is more general. This Court majority is so singularly eager to read things against criminal defendants that criminal defense counsel should always spell out specifically what it is they are not objecting to, rather than just saying no objection. That was good practice before this, but it's certainly recommended now. Otherwise, they risk having their no objections construed to include far more than they anticipated.
6.4.2007 3:15pm
ATRGeek:
Anderson,

But appellate courts do not defer to trial courts on purely legal issues. And if the trial court simply believed that the juror's stated beliefs about the conditional propriety of the death penalty constituted a substantial impairment, without more that is reversible legal error.

I realize, though, this is a tricky issue (rendered more tricky by AEDPA). In the end, though, it always frustrates me when appellate courts claim to be defering to trial courts even when they first have to impute the findings to which they are nominally deferring to the trial court (since the trial court did not place any such findings in the record).

And yes, that practice does in indeed encourage trial courts not to say too much about their decisions on the record, in the hope that the reviewing courts will impute to them whatever findings and reasoning that the reviewing court would be willing to accept. But in my view that is no way to run a court system.
6.4.2007 3:26pm
Erasmus (mail):
I think the Court got this one wrong -- just like it got Landrigan wrong. It tries to hide behind a defenrence that doesn't exist. In Landrigan, it was "deference" to an abuse of discretion standard that did not exist. Here, it is "deference" to a demeanor determination that was never made, but even if it was, was contrary to the juror's statements.

Several annoying things about this opinion include the Supreme Court essentially modifying state law and requiring defense counsel to now make objections in a state proceeding for fear of "waiving" a claim in the federal habeas petition. (I'll feign surprise that the conservatives who are always so concerned about federalism issues signed onto this opinion without reservation.) The lowering of the bar for a right to a jury of your peers is disheartening. And Justice Kennedy's dismissive tone to the Ninth Circuit is also fairly obnoxious and uncalled for.
6.4.2007 3:32pm
arbitraryaardvark (mail) (www):
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
I was wondering if Brown had raised his right to a jury trial under the state constitution, but he did and lost.
6.4.2007 5:54pm
Stuart Buck (mail) (www):
What I find interesting is to compare the following passages:

1. Footnote 1 of Stevens' dissent:
The Court opens its opinion with a graphic description of the underlying facts of respondent's crime, perhaps in an attempt to startle the reader or muster moral support for its decision. Given the legal question at issue, and the procedural posture of this case, the inclusion of such a description is, in my view, both irrelevant and unnecessary.


2. The Court's description of the facts:
Respondent Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later,he robbed, raped, tortured, and attempted to murder asecond woman in California.

3. Kozinski's much more vivid description of those same facts, in the opinion that Justice Stevens wanted to uphold:
Cal Brown is not a nice man. In May 1991, he carjacked Holly Washa and drove her to a motel near the Seattle- Tacoma airport. Brown robbed, raped and tortured Washa while holding her hostage for two days. He bound and gagged her, penetrated her with foreign objects, whipped her and shocked her with an electrical cord. Eventually, Brown put Washa in the trunk of her car, slit her throat, stabbed her and left her to bleed to death in a parking lot.

Brown then flew to Palm Springs, California, to rendezvous
with his next victim, Susan Schnell, whom he had met on an
airplane a few days earlier. While inside their hotel room,
Brown similarly robbed and raped Schnell, bound and gagged
her, tortured and penetrated her. After handcuffing Schnell to the bed, Brown slit her throat and left her to die. Amazingly, Schnell was able to call the front desk and summon the police, who arrived and arrested Brown in the hotel parking lot.
So given that this is what happened, Justice Stevens gets sniffy merely because Kennedy dares to mention that Brown "robbed, raped, tortured, and murdered" someone?
6.4.2007 7:21pm
NickM (mail) (www):
My speculation is that one of Stevens's law clerks initially put in a reference to Kozinski's clerkship for then-Ninth Circuit Judge Anthony Kennedy, but someone thought better of it, and changed the judge reference rather than removing the entire sentence.

Nick
6.4.2007 8:59pm
Michael J.Z. Mannheimer (mail):
Stuart Buck,

I noticed the same thing. My guess is that the Court was much more graphic in a prior draft and responded to Justice Stevens' criticism by taking much of the detail out. Justice Stevens then left in his criticism either because (a) he felt that even that amount of detail is irrelevant to the legal issue involved; or (b) he just neglected to take it out.
6.4.2007 10:28pm
juris_imprudent (mail):
Orin,

"Sunny and Warm in San Diego"

How ironic that you should post this comment as we are in the midst of our annual "June gloom".
6.5.2007 12:15am