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Supreme Court Decision Update - Ayers v. Belmontes

supreme1.jpgYou know you love a new Supreme Court opinion, don’t you? Well, we got one yesterday - Ayers v. Belmontes (PDF of the opinion here) - and since it involves the death penalty, it shouldn’t surprise you to find the conservatives on one side and the liberals on the other. But where’s the all important Kennedy? Let’s find out!

QuizLaw Analysis: Just like with the first case of this term, Purcell v. Gonzalez, the Supremes are again taking it to their favorite whipping dog, the Ninth Circuit. This time, they say the Ninth Circuit botched its reading of a California provision about what evidence a jury can consider when deciding whether to issue the death penalty. This is the third time the Supremes have touched this issue, and they again find the California provision constitutional, saying that its wording is not limited and that it doesn’t prevent juries from considering any mitigating and exculpatory evidence. So as with Purcell, the Supremes are once again telling the Ninth Circuit to respect their authoritah!

What’s this case about? Back in 1982, Fernando Belmontes was convicted of first degree murder. Following his conviction, there was a penalty phase of the trial, where the jury had to decide whether to give him a life sentence or the death penalty. Belmontes entered evidence that he hoped would mitigate him down to a life sentence by showing that he could lead a constructive life in prison. This evidence included testimony from himself, prison chaplains and Christian sponsors suggesting that he had led such a constructive life the last time he was incarcerated. The trial judge then gave the jury several instructions, including one referred to as “factor (k)” - we’ll come back to that in a second. The jury then proceeded to sentence Belmontes to death. He appealed this sentence, and while the District Court upheld it, the Ninth Circuit reversed it.

What’s this “factor (k)” business? Under California law as it stood in 1982, there was a provision which stated that a jury could consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Belmontes argued on appeal that, by giving this instruction to the jury, the trial judge was essentially barring the jury from considering Belmontes potentially mitigating evidence. This, he argued, was a violation of the Eight Amendment, which provides a defendant the right to present all mitigating evidence during a capital sentencing proceeding.

Have the Supremes looked at factor (k) before? Yup. Back in 1990, in Boyde v. California, the Supremes found that factor (k) did not prevent a jury from considering mitigating evidence about the defendant’s background or character before the crime in question. This is because, as the Boyde Court explained, a defendant could “argue that his background and character ‘extenuated’ or ‘excused’ the seriousness of the crime…[so there is] no reason to believe that reasonable jurors would resist the view, ‘long held by society,’ that in an appropriate case such evidence would counsel imposition of a sentence less than death.” The Supremes also looked at factor (k) last year, in Brown v. Payton. This time, the issue was on evidence of a defendant’s rehabilitation after committing the crime in question. The Supremes similarly ruled that factor (k) did not preclude such evidence, and therefore provided no conflict with the Eighth Amendment.

Ok, so now what? Well the Supremes explain that, as directed by the Court in Boyde, the proper inquiry is to ask “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” If it does not appear likely that the jury was prevented from considering all relevent evidence, as was the case in Boyde and Payton, then everything’s ok and we can carry on with our lives.

So is everything ok? Can we carry on with our lives? Well according to the majority opinion, penned by Justice Kennedy, yes, we can carry on with our lives (well, except for Mr. Belmontes, as this ruling means he gets his death sentence back). As usual, according to Kennedy and his fellow Supremes (he was joined by Chief Justice Johnny and Justices ScaThomAlito), the Ninth Circuit just botched it all up. First, the Ninth Circuit made an irrelevant distinction between this case and Payton based on when the federal habeas proceedings were initiated in each case (you remember habeas, right - it’s that thing our country used to have before Bush and his recently ousted Congress hijacked it). In any event, Kennedy’s real problem is with the Ninth Circuit’s conclusion that there was a “reasonable probability” that the jury didn’t consider Belmontes’ evidence. He says the Ninth was too narrow and unrealistic in interpreting factor (k) because the factor actually lets a jury consider any extenuating circumstances, and the likelihood of good future conduct could excuse issuing the death sentence. Now this doesn’t make much sense to me, since the factor (k) instruction talks about evidence extenuating the gravity of the crime, not the sentence. But I suppose the same could be said for the consideration of postcrime rehab, and that’s what Payton was about and, since that can be applied under factor (k), I guess future good conduct can too.

In any event, Kennedy goes on to say that he simply can’t imagine that the jury didn’t consider the evidence after the defense spent so much time presenting it and both parties mentioned it in closing. In fact, the prosecutor specifically attacked it, clearly signaling to the jury that it should be considered. Of course, this totally ignores the question of whether the jury understood that they were allowed to consider the evidence.

On that point, Kennedy again smacks down the Ninth Circuit, for misinterpreting a discussion between the trial judge and some members of the jury during deliberations. I’ll spare you the particulars, but here’s what’s funny to me - the only way Kennedy’s argument makes sense is to read that discussion transcript fairly narrowly, yet he says that factor (k) should be read very broadly. So, according to Kennedy, the Ninth Circuit got things backwards because it gave factor (k) a narrow reading and the jury transcript a broader reading. To narrow the reading of the jurors’ actual words seems a bit wishy-washy to me, but I’m not a Supreme. Yet.

Anyway, the point of it all is this - according to Kennedy, the California instruction is very broad and lets lots of mitigating evidence in, and the Ninth Circuit F’ed up by saying otherwise.

But is that the real lesson here? No. The real lesson here, to my mind, is that jury instructions and statements by the judge to jurors should really be made as clear as possible.

I see Scalia concurred - what’s he gotta’ say for himself? Scalia did indeed write a quick one paragraph concurrence, joined by his Thomas lapdog. He just wanted to say that even if a jury’s discretion were limited so that the jury wasn’t permitted to consider all mitigating evidence, this still wouldn’t be an Eighth Amendment violation. This is an old argument of Scalia’s that he’s just bringing up again because he, apparently, really likes the death sentence.

Ok, what about the liberal pig dogs? What are they bitching about this time? Well this is a death penalty case, so you know that Stevens (who wrote the dissent, joined by Souter, Ginsburg and Breyer) is not happy with the result. Here, the crutch of his argument is that back in 1982, it wasn’t clear that factor (k) allowed the jury to consider all evidence - in fact, he says that “[t]he California death penalty statute in effect in 1982 quite plainly rested on the assumption that California could preclude the consideration of such evidence.” So Stevens thinks that things were very muddled back in 1982, and it was all made worse, in his mind, but the actual details of this case. He reads the evidence from the sentencing proceeding as making it clear that there’s no way the jury would’ve or could’ve considered the mitigating evidence. There’s too much to get into here (this is all rather long enough as it is), but to my mind, Stevens has a rather compelling point. He also addresses the concern I raised, albeit more eloquently than I made it: “[i]nstead of accepting that lay jurors would almost certainly give the words ‘circumstances which extenuates the gravity of the crime’ their ordinary meaning, the Court insists that they would have disregarded their instructions and considered evidence that had nothing whatsoever to do with the crime.” And Stevens just don’t buy this.