OPINIONS OF THE COURT

KANSAS V. MARSH, No. 04 – 1170

Decided: June 26, 2006 

The U.S. Supreme Court held (5 – 4) that the Kansas’ death penal­ty statute, which requires that a death sen­tence be imposed when a jury finds that the aggra­vat­ing and mit­i­gat­ing cir­cum­stances in a case have equal weight, is constitutional.

The jury in Marsh’s death sen­tenc­ing hear­ing was instruct­ed accord­ing to the Kansas’ death penal­ty statute and sen­tenced him to death. In 2001, after Marsh’s sen­tenc­ing hear­ing, the Kansas Supreme Court ruled in State v. Kleypas that on its face, the lan­guage of the sen­tenc­ing statute vio­lates the Eighth and Fourteenth Amendments and that in order for the statute to be applied con­sti­tu­tion­al­ly, the jury must be instruct­ed that the aggra­vat­ing cir­cum­stances have to out­weigh the mit­i­gat­ing cir­cum­stances before death may be imposed. When Marsh appealed his death sen­tence in 2004, the Kansas Supreme Court held that its attempt to rewrite the lan­guage of the statute to sal­vage the death penal­ty in the Kleypas case was in error and that Kansas’ entire death penal­ty is uncon­sti­tu­tion­al because the process used to select which defen­dants are sen­tenced to death does not com­port with the fun­da­men­tal respect for human­i­ty under­ly­ing the Eighth Amendment. The court held that there was ​“no way” that Kansas’ weigh­ing equa­tion is per­mis­si­ble under the Eighth and Fourteenth Amendments.

The U.S. Supreme Court reversed the judg­ment of the Kansas Supreme Court and remand­ed the case for fur­ther pro­ceed­ings. In uphold­ing the Kansas statute, the Court cit­ed Walton v. Arizona (1990). In Walton, the Court had held that a state death penal­ty statute may give the defen­dant the bur­den to prove that mit­i­gat­ing cir­cum­stances out­weigh aggra­vat­ing cir­cum­stances. Finding that Walton con­trols this case, the Court rea­soned that the Kansas’ death penal­ty statute may con­sti­tu­tion­al­ly direct impo­si­tion of the death penal­ty when the State has proved beyond a rea­son­able doubt that mit­i­gat­ing cir­cum­stances do not out­weigh aggra­vat­ing cir­cum­stances, even when they are of equal weight. Even if Walton does not direct­ly con­trol this case, the Court stat­ed, a State has a range of dis­cre­tion in impos­ing the death penal­ty, includ­ing how the aggra­vat­ing and mit­i­gat­ing cir­cum­stances are weighed, as long as the state sys­tem sat­is­fies the require­ments of Furman v. Georgia and Gregg v. Georgia.

Justice Souter, with Justices Stevens, Ginsburg, and Breyer join­ing, issued a dis­sent­ing opin­ion, not­ing that the Kansas’ statute involv­ing the ​“tie break­er” in favor of death fails because the statute oper­ates mere­ly on a jury’s find­ing of the equal weight of aggra­vat­ing and mit­i­gat­ing fac­tors instead of the details of the crime or the unique iden­ti­ty of the indi­vid­ual defen­dant. The tie break­er does not reserve the death penal­ty for the worst of the worst offend­ers since the jury’s deci­sion is noth­ing more than a ​“tie,” which indi­cates that the jury does not see the evi­dence as heinous enough to require death.

The dis­sent also stat­ed that ​“a new body of fact must be account­ed for in decid­ing what, in prac­ti­cal terms, the Eighth Amendment guar­an­tees should tol­er­ate, for the peri­od start­ing in 1989 has seen repeat­ed exon­er­a­tions of con­victs under death sen­tences, in num­bers nev­er imag­ined before the devel­op­ment of DNA tests. We can­not face up to these facts and still hold that the guar­an­tee of moral­ly jus­ti­fi­able sen­tenc­ing is hol­low enough to allow max­i­miz­ing death sen­tences, by requir­ing them when juries fail to find the worst degree of cul­pa­bil­i­ty: when, by a State’s own stan­dards and a State’s own char­ac­ter­i­za­tion, the case for death is ​‘doubt­ful.’” (empha­sis added).

Justice Scalia con­curred with the major­i­ty but wrote sep­a­rate­ly to chal­lenge the dis­sent. Justice Scalia crit­i­cized the dis­senters for using their pol­i­cy views to crit­i­cize cap­i­tal pun­ish­ment for the con­dem­na­tion of so many inno­cent peo­ple. Scalia assert­ed that the Kansas’ statute has noth­ing to do with the eval­u­a­tion of guilt or inno­cence because this case is about chal­leng­ing sen­tenc­ing stan­dards. Scalia also chal­lenged the dis­senters’ ref­er­ence to DNA exon­er­a­tions and their reliance on cer­tain stud­ies. According to Scalia, DNA test­ing is a ​“high­ly effec­tive way to avoid con­vic­tion of the inno­cent,” not pri­mar­i­ly a way to iden­ti­fy defen­dants erro­neous­ly con­vict­ed. Scalia empha­sized that it is a ​“tru­ism, not a rev­e­la­tion” that one has to accept the pos­si­bil­i­ty that some­one will be pun­ished mis­tak­en­ly in order to have a sys­tem of criminal punishment.

HILL V. MCDONOUGH, No. 05 – 8794 (formerly Hill v. Crosby)

Decided: June 12, 2006

Update: Clarence Hill was exe­cut­ed in Florida on Sept. 20, 2006. He nev­er received an evi­den­tiary hear­ing on his lethal injec­tion chal­lenge in federal court.

The Supreme Court ruled unan­i­mous­ly that death row inmates seek­ing to chal­lenge lethal injec­tion pro­ce­dures may pur­sue the issue as a civ­il rights claim. The Court referred to its deci­sion in Nelson v. Campbell (2004) in which it allowed an inmate who chal­lenged a ​“cut down” pro­ce­dure used in Alabama to pro­ceed as a civ­il rights claim.

The Court in Hill held that Clarence Hill’s claim does not have to be brought in habeas but may pro­ceed under Section 1983 because his claim is com­pa­ra­ble in its essen­tials to the civ­il rights claim the Court allowed in Nelson. The Court con­clud­ed in Nelson that injunc­tive relief would not pre­vent the State from imple­ment­ing the sen­tence of death since there was no find­ing that the pro­ce­dure was nec­es­sary to the lethal injec­tion. Similarly, Hill’s action, if suc­cess­ful, would not nec­es­sar­i­ly pre­vent the State from exe­cut­ing him by lethal injec­tion. The Court empha­sized that Hill did not chal­lenge the lethal injec­tion sen­tence as a gen­er­al mat­ter but seeks instead only to enjoin the respon­dents ​“from exe­cut­ing [Hill] in the man­ner they cur­rent­ly intend.” However, the Court also not­ed that find­ing an action that can pro­ceed under Section 1983 does not enti­tle the com­plainant to an auto­mat­ic stay of exe­cu­tion. Inmates seek­ing time to chal­lenge the man­ner of their exe­cu­tion must sat­is­fy all of the require­ments for a stay.

The judg­ment was reversed and the case remand­ed for further proceedings.

The Court had grant­ed a stay of exe­cu­tion to Hill in Florida just min­utes before his exe­cu­tion was to take place on January 24, 2006. The next day, the Court made the stay per­ma­nent until they could hear Hill’s chal­lenge to the lethal injec­tion pro­ce­dures in Florida. Hill raised a civ­il rights claim stat­ing that the chem­i­cals used in lethal injec­tion could inflict severe and unnec­es­sary pain. The U.S. Court of Appeals for the 11th Circuit reject­ed his use of the civ­il rights law and required that his claim be con­sid­ered as part of his reg­u­lar habeas cor­pus appeal. They then reject­ed the claim for non­com­pli­ance with the suc­ces­sive petition requirements.

HOUSE v. BELL, No. 04 – 8990

Decided: June 12, 2006

The Supreme Court reversed the U.S. Court of Appeals for the Sixth Circuit and held 5 – 3 that Tennessee death row inmate Paul House can chal­lenge the con­sti­tu­tion­al­i­ty of his con­vic­tion. The rul­ing marks the first time that the Justices have con­sid­ered the new evi­den­tiary tech­nol­o­gy of DNA evi­dence when re-exam­in­ing a death sen­tence. The Court held that new evi­dence, includ­ing DNA test results, raised suf­fi­cient doubt to mer­it a new hear­ing in fed­er­al court for Tennessee death row inmate Paul House, who was sen­tenced to death two decades ago for the rape and mur­der of his neighbor.

The Sixth Circuit Court denied habeas cor­pus relief on the ground that House failed to show actu­al inno­cence to pre­clude pro­ce­dur­al default. House claimed that evi­dence of his actu­al inno­cence was suf­fi­cient to except his claims from pro­ce­dur­al default. House assert­ed that the new evi­dence estab­lished that semen on the victim’s clothes was that of the victim’s hus­band and that the blood­stains on his clothes result­ed from spillage from the sam­ples of the victim’s blood.

The Court referred to the stan­dard of Schup v. Delo and held that it was more like­ly than not that no rea­son­able juror view­ing the record as a whole would find House guilty beyond a rea­son­able doubt. Writing for the major­i­ty, Justice Anthony M. Kennedy not­ed that ​“all the evi­dence, old and new, incrim­i­nat­ing and excul­pa­to­ry” must be tak­en into account. He stat­ed that when an inmate comes to fed­er­al court with evi­dence of inno­cence, ​“the court’s func­tion is not to make an inde­pen­dent fac­tu­al deter­mi­na­tion about what like­ly occurred, but rather to assess the like­ly impact of the evi­dence on reasonable jurors.”

The judg­ment uphold­ing the denial of habeas cor­pus relief was reversed, and the case was remand­ed for con­sid­er­a­tion of House’s pro­ce­du­ral­ly barred claims. 

HOLMES V. SOUTH CAROLINA, No. 04 – 1327.

Decided: May 1, 2006

The U.S. Supreme Court, with Justice Samuel Alito writ­ing his first opin­ion, unan­i­mous­ly ruled on May 1 that South Carolina had deprived Bobbie Lee Holmes of a fair tri­al when it pre­vent­ed him from putting on evi­dence con­tra­dic­to­ry to the state’s case and that point­ed to anoth­er pos­si­ble sus­pect. South Carolina’s rule was that if the state had put on strong foren­sic evi­dence of the defen­dan­t’s guilt, the defen­dant could be pro­hib­it­ed from rais­ing an alter­na­tive the­o­ry of a third par­ty’s guilt. Justice Alito found this rule to be arbi­trary and irra­tional, writ­ing: ​“The point is that by eval­u­at­ing the strength of only one par­ty’s evi­dence, no log­i­cal con­clu­sion can be reached regard­ing the strength of con­trary evi­dence offered by the oth­er side to rebut or cast doubt.” A coali­tion of 18 states, led by Attorney General Phill Kline of Kansas, had filed a brief in sup­port of South Carolina’s posi­tion. (NY Times, May 2, 2006).

OREGON V. GUZEK, No. 04 – 928. 

Decided: February 22, 2006

The Supreme Court ruled (7 – 0, with­out Justice O’Connor and with Justice Alito not par­tic­i­pat­ing) that Oregon courts are not required to allow the defen­dant to intro­duce new ali­bi evi­dence per­tain­ing to his inno­cence at the sen­tenc­ing phase of the tri­al. The Court rea­soned that states may put rea­son­able lim­its on the evi­dence a defen­dant may present. Particularly at the sen­tenc­ing phase, when the ques­tion is not whether the defen­dant com­mit­ted the crime but how, and since the issue of inno­cence had already been lit­i­gat­ed, and since state law allows the defen­dant to present evi­dence of his inno­cence in the form of tran­scripts from his orig­i­nal tri­al to the jury, the Oregon court did not have to hear Guzek’s addi­tion­al evi­dence of innocence.

BROWN V. SANDERS, No. 04 – 980.

Decided: January 11, 2006

The U.S. Supreme Court re-instat­ed the death sen­tence of Ronald Sanders in a 5 – 4 rul­ing over­turn­ing a deci­sion by the U.S. Court of Appeals for the Ninth Circuit. After Sanders had been sen­tenced to death in California, the state’s supreme court held that two of the aggra­vat­ing fac­tors used by the jury in its sen­tenc­ing deter­mi­na­tion were invalid. The 9th Circuit had held that California is a ​“weigh­ing state” and hence the use of these invalid aggra­vat­ing fac­tors ren­dered the death sen­tence uncon­sti­tu­tion­al because the low­er court had not found that such use was harm­less to the defendant.

The major­i­ty in the U.S. Supreme Court dis­pensed with the dis­tinc­tion between weigh­ing and non-weigh­ing states and announced a new way of eval­u­at­ing the effect of invalid aggra­vat­ing fac­tors: ​“An inval­i­dat­ed sen­tenc­ing fac­tor (whether an eli­gi­bil­i­ty fac­tor or not) will ren­der the sen­tence uncon­sti­tu­tion­al by rea­son of its adding an improp­er ele­ment to the aggra­va­tion scale in the weigh­ing process unless one of the oth­er sen­tenc­ing fac­tors enables the sen­tencer to give aggra­vat­ing weight to the same facts and cir­cum­stances.” The Court found that in this case there were oth­er aggra­vat­ing fac­tors fit­ting this descrip­tion and there­fore Sanders’ death sen­tence was valid. (Brown v. Sanders, No. 04 – 980, decid­ed Jan. 11, 2006; Associated Press, Jan. 11, 2006).

BRADSHAW V. RICHEY, No. 05 – 101.

In a per curi­am opin­ion issued with­out oral argu­ment, the Court grant­ed the State’s peti­tion for a writ of cer­tio­rari, unan­i­mous­ly vacat­ed the judg­ment of the U.S. Court of Appeals for the 6th Circuit, and remand­ed the case for fur­ther con­sid­er­a­tion. Kenneth Richey, a cit­i­zen of both the U.S. and Great Britain, had been con­vict­ed in 1987 in Ohio of aggra­vat­ed mur­der in the course of a felony, name­ly set­ting fire to a house. The state had shown that although his intend­ed vic­tims escaped, anoth­er per­son was killed in the fire, and by the state doc­trine of ​“trans­ferred intent” he was guilty of cap­i­tal mur­der and he was sen­tenced to death. The Sixth Circuit grant­ed him habeas relief, hold­ing that trans­ferred intent was not a per­mis­si­ble the­o­ry for aggra­vat­ed felony mur­der under Ohio law, and that he had been giv­en inad­e­quate rep­re­sen­ta­tion. The Supreme Court held that the Sixth Circuit erred in inter­pret­ing the Ohio law of trans­ferred intent, and that it failed to ade­quate­ly con­sid­er whether Richey’s inef­fec­tive­ness of coun­sel claims were pro­ce­du­ral­ly barred. (Decided Nov. 28, 2005) (Associated Press, Nov. 28, 2005).

SCHRIRO V. SMITH, No. 04 – 1475.

The Court issued an unsigned opin­ion hold­ing that it was improp­er for the U.S. Court of Appeals for the Ninth Circuit to require Arizona to have a jury deter­mine a defen­dan­t’s men­tal retar­da­tion sta­tus. The Court not­ed that Arizona’s leg­is­la­ture had not yet addressed whether this issue should be decid­ed by a judge or a jury. (October 17, 2005). (Washington Post, Oct. 18, 2005).

ORDERS OF THE COURT

ABDUR’RAHMAN V. BREDESEN, No. 05 – 1036.

The Court denied cer­tio­rari on May 22, 2006 to this lethal injec­tion chal­lenge from Tennessee. The state supreme court had ruled that the lethal injec­tion process and chem­i­cals used were not a vio­la­tion of the cru­el and unusu­al clause of the Eighth Amendment to the U.S. Constitution. Although this case was in the prop­er pro­ce­dur­al posi­tion to be heard by the High Court, it appears that the Court will allow the mer­its of the lethal injec­tion process to be con­sid­ered more thor­ough­ly by low­er courts before, if ever, tak­ing on this issue.

LOVITT V. TRUE, No. 05 – 5044.

The Court denied cer­tio­rari on October 3, 2005. Robin Lovitt had appealed on grounds that phys­i­cal evi­dence, includ­ing DNA mate­r­i­al, from his tri­al had been destroyed by the state and that he had been giv­en inef­fec­tive coun­sel. The appeal was filed by Kenneth Starr, for­mer Solicitor General of the U.S. The Court had grant­ed a stay of exe­cu­tion to Lovitt from Virginia on July 11, 2005, pend­ing con­sid­er­a­tion of his peti­tion for cert. (See N.Y. Times, Oct. 4, 2005). Lovitt’s death sen­tence was com­mut­ed to life with­out parole by Governor Warner of Virginia.

BARNETTE, AQUILIA M. V. UNITED STATES, No. 04 – 10295.

The peti­tion for a writ of cer­tio­rari was grant­ed. The judg­ment is vacat­ed and the case is remand­ed to the United States Court of Appeals for the Fourth Circuit for fur­ther con­sid­er­a­tion in light of Miller-El v. Dretke, 545 U.S. _​(2005). The Chief Justice took no part in the con­sid­er­a­tion or deci­sion of this motion and this peti­tion. (Supreme Court Orders, Oct. 3, 2005).