Opinions of the Court
McCOY v. LOUISIANA, No. 16-8255
Cert. granted: September 28, 2017
Argument: January 17, 2018
Decided: May 14, 2018
In a 6-3 ruling with Justice Ruth Bader Ginsburg writing for the majority, the U.S. Supreme Court sided with Louisiana death-row prisoner Robert McCoy (pictured), granting him a new trial and finding counsel’s concession of guilt violated McCoy’s Sixth Amendment right to counsel.
In August 2011, McCoy was convicted in Bossier Parish, Louisiana, of three counts of first-degree murder and sentenced to death in January 2012. McCoy adamantly maintained his innocence throughout his trial proceedings, and ultimately sought removal of his appointed public defenders because they were “doing nothing to assist him in proving his innocence.” McCoy’s family borrowed money against their car title and hired an attorney for $5000 to represent McCoy. His attorney informed McCoy two weeks prior to trial that he would have to concede McCoy’s guilt to avoid the death penalty. Disagreeing with this strategy, McCoy attempted to have his attorney removed and to represent himself, but the court would not allow him to do so. During trial, counsel repeatedly admitted that McCoy killed the victims, even though McCoy testified in his own defense, asserting his innocence and explaining that a drug-trafficking ring was responsible for the murders. McCoy raised the constitutionality of his lawyer’s actions on appeal to the Louisiana Supreme Court. That court held that defense counsel had authority to determine whether to concede guilt, even over the objection of the client.
The question that was presented to the Court, as stated in the petition for writ of certiorari filed by Petitioner: “Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?” The Court answered that question in the affirmative, explaining that the Sixth Amendment guarantees an accused the assistance of counsel for his defense, which includes directing the objective of the case. “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” Justice Ginsburg explained that “the ‘assistance’ of counsel” guaranteed by the Sixth Amendment does not require a defendant to “surrender control entirely to counsel. … Some decisions,” she wrote, “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Here, the Court found that McCoy’s objective—to maintain that he was innocent of murdering his family—was irreconcilable with trial counsel’s objective—to avoid a death sentence. “When a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts,” the Court held, “his lawyer must abide by that objective and may not override it by conceding guilt.”
Justices Alito, Thomas, and Gorsuch dissented. The dissent disagreed that trial counsel had conceded McCoy’s guilt by telling the jury that his client killed the victims, saying that counsel had stressed that McCoy lacked the intent to kill necessary for first-degree murder and that McCoy therefore was guilty only of second-degree murder. It also minimized the need for the ruling, describing the problem as “a rare plant that blooms every decade or so” and one that was unlikely to recur.
Read the Opinion. Read case-related documents on SCOTUSblog.
WILSON v. SELLERS, No. 16-6855
Cert. granted: February 27, 2017
Argument: October 30, 2017
Decided: April 17, 2018
In a 6-3 Opinion with Justice Breyer writing for the majority, and Justice Gorsuch (joined by Justices Thomas and Alito) writing the dissent, the Supreme Court ruled in favor of Georgia death-row prisoner Marion Wilson. The Court reversed the decision of the U.S. Court of Appeals for the Eleventh Circuit after finding that the appeals court failed to consider the state post-conviction court’s reasoning when denying Wilson relief on his claim of ineffective assistance of counsel.
In this case, Mr. Wilson was sentenced to death in Baldwin County, Georgia in 1997. In his state post-conviction proceedings, he alleged that his trial counsel had been ineffective in failing to investigate and present available mitigating evidence. After holding an evidentiary hearing, the trial-level state habeas court denied relief, issuing a written order explaining the court’s reasoning. Mr. Wilson then asked the Georgia Supreme Court for permission to appeal the order, which the court summarily denied in a one-sentence order. Wilson then reasserted his claim of ineffective assistance of counsel as part of his federal habeas corpus petition, and argued that the state court had unreasonably determined the facts and unreasonably applied the law when it denied him relief on this claim. Although the Georgia federal district court denied relief, it nevertheless found that the state court’s decision had been deeply flawed, both factually and legally.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit, in a splintered 6-5 en banc decision, ruled that the district court should not have reviewed the opinion of the trial-level state habeas court at all because the Georgia Supreme Court had issued a summary denial of relief. Applying the rule in Richter to cases in which there had been a reasoned lower state-court opinion, the Eleventh Circuit concluded that “federal courts need not ‘look through’ a summary decision on the merits to review the reasoning of the lower state court.” The Court decided only this specific legal issue and sent the case back to the 3-judge panel to consider the remaining issues in Wilson’s case.
The question presented to the Supreme Court, as stated in the merits brief filed by Petitioner, was:
Did this Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) – that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision – as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?
In lay terms, the Court was asked to decide whether federal courts reviewing a claim in a petition for writ of habeas corpus should consider the findings and reasoning of a lower state court which denied that claim where the state appellate court issued no opinion. In the 1991 Supreme Court decision of Ylst v. Nunnemaker, the Court held that “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” But twenty years later, in 2011, the Supreme Court decided Harrington v. Richter, which addressed a situation in which the state court that considered the claim issued only a summary denial without any written opinion. The Supreme Court ruled that, under those circumstances, federal courts must treat the issues raised in the petition as if the state court decided them on the merits. It further ruled that the federal court must deny habeas relief on the claim if it can think of any reasonable basis to justify the state court’s decision, whether or not that is actual reason the state court denied the claim.
Justice Breyer, writing for the six-justice majority, held that the rule in Ylst applies in Wilson’s case—a situation where the state trial court denied relief authoring a reasoned decision, but the state supreme court simply denied relief in one word. Under these circumstances, the Supreme Court found that federal courts, which are required by statute to assess the reasonableness of a state court’s denial of relief, should look to the last reasoned decision by the state courts. Because the federal appeals court failed to do this in Wilson’s case, the Court remanded the case for further review by the Eleventh Circuit. Justice Gorsuch, joined by Justices Thomas and Alito, dissented, writing that the appropriate role of federal courts is to review the last state-court decision, and if there is no reasoned opinion, then the federal court must ask whether there was any reasonable basis to deny relief.
The same issue was raised last Term by another Georgia death-row prisoner, Travis Hittson, who was executed on February 17, 2016. Justice Ginsburg, joined by Justice Kagan, wrote an opinion concurring in the denial of certiorari in Hittson’s case, but suggesting that the Eleventh Circuit had erred when it ignored the actual reasoning of the trial court judge and instead created “hypothetical theories that could have supported the Georgia Supreme Court’s unexplained order.” In that case, Justice Ginsburg did not think certiorari was appropriate, because even though the Eleventh Circuit had misapplied the law, she believed the district court had correctly denied relief; she also noted that the Eleventh Circuit had already agreed to review Wilson’s case en banc and would have the opportunity to correct its mistake.
Read the Opinion here, and read case-related documents on SCOTUSBlog.
AYESTAS v. DAVIS, No. 16-6795
Cert. granted: April 3, 2017
Argument: October 30, 2017
Decided: March 21, 2018
In a unanimous opinion written by Justice Samuel Alito, the Supreme Court reversed the decision of the U.S. Court of Appeals for the Fifth Circuit in a case brought by Texas death-row prisoner Carlos Ayestas after the lower federal courts denied him funding to conduct a mitigation investigation to develop his claim that he had been provided ineffective assistance of counsel at trial. The technical legal issue in the case was whether the Fifth Circuit had correctly interpreted the statute that permits federal courts to authorize funding for habeas corpus petitioners that is “reasonably necessary” for the petitioner to investigate potential legal claims in his or her case.
Ayestas alleged in his federal habeas proceedings that his trial counsel had been ineffective for failing to investigate, develop, and present mitigating evidence—particularly evidence of mental illness and drug addiction. However, Ayestas’s subsequent lawyers had never presented facts supporting that claim to the state court during his state post-conviction proceedings, and Ayestas argued that this failure had resulted from those lawyers’ ineffective representation. The federal district court and the Fifth Circuit Court of Appeals denied Ayestas relief for procedural reasons, but while his appeal was pending, the U.S. Supreme Court decided Trevino v. Thaler, a case that permitted federal habeas courts to review certain claims of ineffective assistance of counsel that had not been raised in state court. Ayestas’s case was remanded for further consideration in light of Trevino. On remand, the district court denied Ayestas’s request for funding to investigate and develop the factual basis for his claim—a request that was necessary for him to be able to show that his prior counsel’s investigative failures had been prejudicial. Under the applicable federal statute, Ayestas was entitled to funding if it was “reasonably necessary” to investigate and develop his claims. But, following Fifth Circuit precedent, the district court erroneously interpreted “reasonably necessary” as requiring a showing that Ayestas had a “substantial need” for the funding. The Fifth Circuit affirmed the denial of funding, saying his claim was not worthy of fact development because “even if Ayestas had entered the early stages of an as-yet undiagnosed mental illness, [it] f[ou]nd it at best to be conceivable, but not substantially likely, that the outcome may have been different.” In other words, without having the benefit of funding to develop a claim, the Fifth Circuit determined that Ayestas had not shown prejudice supporting his claim.
The Supreme Court held that the Fifth Circuit had imposed a higher burden on prisoners than the statute required. In rejecting the Fifth Circuit’s “substantial need” rule, the Court reiterated that the lower courts should assess “whether a reasonable attorney would regard the services as sufficiently important.” Such a standard “requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.” The Court sent the case back to the Fifth Circuit to determine whether, in this case, Ayestas could demonstrate that funding was reasonably necessary. Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurring opinion explaining that the facts already in the record demonstrate that Ayestas has already made that showing in this case.
Read the Opinion here. See also DPIC’s case page, and read case-related documents on SCOTUSBlog.
THARPE v. SELLERS, No. 17-6075
Per curiam, cert. granted and decided: January 8, 2018
In a 6-3 per curiam opinion, the U.S. Supreme Court reversed the Eleventh Circuit Court of Appeals’ rejection of Georgia death-row prisoner Keith Tharpe’s claim that he was denied a fair trial due to a juror’s racial bias and remanded the case for further consideration. Several years after Tharpe’s trial, a white juror who had voted to impose death told Tharpe’s attorneys—and signed an affidavit saying—that he believed “there are two types of black people: 1. Black folks and 2. N[**]gers,” and Tharpe was not in “the ‘good’ black folks category.” This same juror also admitted that he “wondered if black people even have souls.” Tharpe presented this affidavit in state court, but his claim was rejected. The federal courts, relying on the state court’s decision, also denied his claim.
In June 2017, Tharpe asked the federal courts to reopen his case to reconsider his juror-bias claim, relying upon two recent decisions from the Supreme Court: (1) Pena-Rodriguez v. Colorado, No. 15-606 (March 6, 2017), a non-capital case in which the court held that a defendant is entitled to present evidence “that racial animus was a significant motivating factor in [a] juror’s vote to convict” to show that he was denied a fair trial; and (2) Buck v. Davis, No. 15-8049 (February 22, 2017), a case in an unusual procedure posture in which the Court granted relief to Texas death-row prisoner Duane Buck, where Buck demonstrated that he “may have been sentenced to death because of his race.” The federal district court declined to reopen Tharpe’s case and the Eleventh Circuit refused to even issue a certificate of appealability (COA)—a procedural prerequisite to considering an issue on appeal—because it found that “reasonable jurists” would all agree with the state-court decision that found Tharpe was not prejudiced by this particular juror who served on his jury. The Supreme Court, however, disagreed with the the court of appeals’ reasoning for denying a COA saying that the “[a]t the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination [which found no prejudice] was wrong.” The Court ultimately left the decision as to whether a COA should issue, and therefore permit review of the merits of the claim, up to the Eleventh Circuit.
Justice Thomas authored a dissent, joined by Justices Alito and Gorsuch, criticizing the Court for interfering in the case and failing to respect the lower courts’ judgments.
Read the Opinion and the Dissent here; read case-related documents at SCOTUSBlog here.
Read more about the case from DPIC: For Second Time in Two Years, Georgia Prepares to Execute Black Prisoner Whom White Juror Called N-Word and Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism
DUNN v. MADISON, No. 17-193
Per curiam, cert. granted and decided: November 6, 2017
In a four-page per curiam opinion, the U.S. Supreme Court reversed the decision of the U.S. Court of Appeals for the Eleventh Circuit that found that Alabama death-row prisoner, Vernon Madison, was incompetent to be executed and that the state court’s determination otherwise was unreasonable. As the basis for its decision, the Court noted that there was no clearly established law precluding execution where “a prisoner is incompetent to be executed because of a failure to remember his commission of the crime,” which the Court said was “distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case,” a circumstance which has been clearly established as unconstitutional. The court of appeals had determined that Madison lacked an understanding of the “connection between his crime and his execution” due to his “memory loss, difficulty communicating, and profound disorientation and confusion.” In addition to his memory loss, Madison is “legally blind, cannot walk independently, is incontinent and has slurred speech.” Madison had suffered two strokes in the past several years that contributing to his failing mental status. In reversing the Eleventh Circuit’s decision, the Supreme Court applied the Anti-Terrorism and Effective Death Penalty Act (AEDPA)—which requires deference to state court decisions under most circumstances—and found that “the state court’s determinations of law and fact were not so lacking in justification as to give rise to error beyond any possibility for fairminded disagreement.”
Justice Ginsburg, joined by Justices Breyer and Sotomayor, issued a brief concurrence indicating that the question of whether states “may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense” has not been squarely decided by the Court. The Justices agreed, however, that the question could not be reached in the instant case because under AEDPA, the Court must defer to the state court’s decision.
Justice Breyer also filed a separate concurrence citing his dissent in Glossip v. Gross, a 2015 decision in which he called for briefing on the constitutionality of the death penalty and suggested that it was no longer a constitutional penalty. In his concurrence here, Justice Breyer pointed out the problems with the lengthy time between sentence and execution, intimating that the Court will likley have to decide “the ways in which lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rationale.”
Read the opinion.
Grants of Certiorari—Pending Decisions
For cases carried over to the next term, see our 2018-2019 term page.
Orders of the Court
Certiorari Granted—Judgment Vacated and Case Remanded
Long v. Davis, No. 16-8909 (U.S. Oct. 2, 2017), cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the Fifth Circuit for further consideration of Steven Long’s (pictured) death sentence in light of decision in Moore v. Texas, the case in which the Supreme Court struck down Texas’s standard for evaluating intellectual disability in death-penalty cases. In August 2017, Long obtained a stay of execution from the state court of criminal appeals to litigate whether he was ineligible for the death penalty because of his intellectual disability.
Weathers v. Davis, No. 16-9446 (U.S. Oct. 9, 2017), cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the Fifth Circuit for further consideration of Obie Weathers’s (pictured) claim of intellectual disability in light of Moore v. Texas.
Wright v. Florida, No. 17-5575 (U.S. Oct. 16, 2017), cert. granted, judgment vacated, and case remanded to the Supreme Court of Florida for further consideration of Tavares Wright’s (pictured) claim of intellectual disability in light of Moore v. Texas.
Clark v. Louisiana, No. 16-9541 (U.S. June 25, 2018), cert. granted, judgment vacated, and case remanded to the Supreme Court of Louisiana for further consideration of Jeffrey Clark’s case in light of McCoy v. Louisiana.
Stays of Executions
Tharpe v. Sellers
No. 17-6075 (17A330) (U.S. Sept. 26, 2017) (Justices Thomas, Alito, and Gorsuch dissenting).
Three hours after his execution was scheduled to begin, the U.S. Supreme Court stayed the execution of Keith Tharpe (pictured), a Georgia death-row prisoner who sought review of a claim that he had been unconstitutionally sentenced to death because a white juror who “harbored profound racial animus against African Americans” had voted to sentence Tharpe to death because he is black. Over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of execution on September 26, pending a final ruling on whether to review a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe permission to appeal the issue. The Supreme Court’s stay order specifies that the stay “shall terminate automatically” if the Court ultimately decides not to review the issue or if the Court ultimately rules against Tharpe.
Under Supreme Court rules, the votes of four Justices are normally sufficient to grant review of a prisoner’s appeal. However, the votes of five Justices are required to stay an execution, which effectively overrides the Court’s rules for granting review in circumstances in which a death-row prisoner faces an active death warrant.
For more on the Court’s stay order, read Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism.
Madison v. Dunn
No. 17-7505 (17A770) (U.S. Jan. 25, 2018) (Justices Thomas, Alito, and Gorsuch dissenting).
After Justice Thomas entered a temporary stay less than one hour before Alabama was scheduled to execute Vernon Madison (pictured), the U.S. Supreme Court later voted 6-3 to stay Madison’s execution so that it could consider his pending petition for writ of certiorari. The petition challenges the state court’s determination that Madison—whose dementia has left him with no memory of the crime for which he has been sentenced to death—is competent to be executed. The two questions presented to the Court in Madison’s petition are:
1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?
2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?
Read Madison’s Petition for Writ of Certiorari; Madison’s Stay Motion; State’s Brief in Opposition to Certiorari; State’s Opposition to Stay Motion; Madison’s Reply; Supreme Court Stay Order.
Bucklew v. Precythe
No. 17-8151 (17A911) (U.S. Mar. 20, 2018) (The Chief Justice, and Justices Thomas, Alito, and Gorsuch dissenting).
After the U.S. Supreme Court had stayed Russell Bucklew’s execution in May 2014, Missouri set another execution for March 20, 2018. Bucklew has consistently argued that his rare medical condition—which causes large tumors of malformed blood vessels to grow on his head, face, and neck, including a vascular tumor that obstructs his airway—would make execution via lethal injection cruel and unusual. The Supreme Court (5-4) stayed his execution hours before it was scheduled on March 20, so that the Court could consider whether to review the merits of his petition. Bucklew presented three questions to the Court:
(1) Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended?
(2) Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate?
(3) Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition?
The Court has scheduled the case for conference on April 13. Read the case-related documents on the Supreme Court website.
Review Denied, with Dissent or Statement
TRUEHILL v. FLORIDA, No. 16-9448, Petition filed: June 2, 2017
OLIVER v. FLORIDA, No. 17-5083, Petition filed: June 28, 2017
Cert. Denied: October 16, 2017
Dissent by Sotomayor, Ginsburg, and Breyer
Building upon Hurst v. Florida, a Supreme Court case from 2016 invalidating the state’s death-penalty statute, Florida death-row prisoners Quentin Truehill and Terence Oliver have filed petitions asking the the Court to further consider the constitutionality of the state’s death-sentencing scheme. In their cases, the jury was to provide only an “advisory” sentencing recommendation, which then permitted the judge to make the findings necessary for a sentence of death. The Questions presented in both of their petitions are:
(1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California, or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, when the jury was repeatedly advised by the court that its advisory sentencing recommendation was non-binding.
On October 16, the Court denied review in both of these cases over the dissent of three Justices. Justice Breyer dissented for the reasons set for in his opinion in Hurst, which reiterated that juries—not judges—should be the final decision-maker regarding whether to sentence someone to death. Justice Sotomayor, joined by justices Ginsburg and Breyer, dissented because the Florida Supreme Court has failed to address the constitutionality of prior sentencing procedures in light of the Court’s decision in Hurst. Specifically, in Florida death-penalty cases, juries were instructed that their “verdict was merely advisory,” an instruction that could be inconsistent with the Court’s decision in Hurst which struck down the prior law that allowed judges to find facts necessary to impose a death sentence. In Justice Sotomayor’s opinion, the Court should have granted review of the case “[b]ecause petitioners here raised a potentially meritorious Eighth Amendment challenge to their death sentences, and because the stakes in capital cases are too high to ignore such constitutional challenges.”
Read the pleadings for Truehill here: SCOTUSBlog. Read the pleadings for Oliver here.
FLOYD v. ALABAMA, No. 16-9304
Petition filed: May 22, 2017
Cert. Denied: December 4, 2017
Statement by Sotomayor, joined by Breyer
Christopher Floyd was sentenced to death by a judge in Houston County, Alabama, after a non-unanimous jury recommended (11-1) death. The prosecutor kept track of race and struck 10 of 11 potential black jurors from his jury. In 2016, the U.S. Supreme Court granted review in Floyd’s case, vacated the decision, and remanded the case to the state supreme court for reconsideration in light of Foster v. Chatman, a 2016 Supreme Court decision from Georgia involving similar facts, including a prosecutor who marked a “B” next to black potential jurors. On remand, the Alabama Supreme Court affirmed Floyd’s conviction and sentence, finding that it “simply cannot conclude, even though the record does contain a list used by the prosecutor indicating the race of each potential juror, that the record in this case evidences a ‘concerted effort to keep black prospective jurors off the jury.’”
In denying review, Justice Sotomayor joined by Justice Breyer wrote a statement explaining: “Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention.” While Justice Sotomayor recognized that the procedural posture in the case made it difficult for that Court to review, she nonetheless implored lower courts to “be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process.”
Read the pleadings at SCOTUSBlog.
MIDDLETON v. FLORIDA, No. 17-6580, TUNDIDOR v. FLORIDA, No. 17-6735
Petitions filed: October 27, 2017 & November 8, 2017
Cert. Denied: February 26, 2018
Dissents by Breyer and by Sotomayor, joined by Ginsburg
Petitioner Dale Glenn Middleton and Petitioner Randy W. Tundidor are Florida death-row prisoners who were both sentenced after a unanimous jury recommended the death penalty. They were sentenced to death under a capital-sentencing statute that was later found to be unconstitutional in Hurst v. Florida, the 2016 Supreme Court decision that held that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” On direct appeal, petitioners asked the Florida Supreme Court to find that their death sentences—which were each imposed after a jury was told that its verdict was only a recommendation—unconstitutional under the Eighth Amendment and U.S. Supreme Court precedent. The Florida Supreme Court declined to address the issue.
Petitioner Middleton sought review of the following questions:
1. Where a Florida jury gave an advisory recommendation without making the findings required by the Sixth and Fourteenth Amendments and Hurst v. Florida, 136 S. Ct. 616 (2016) — (1) is the error automatically harmless because the advisory recommendation was unanimous and (2) was the jury’s recommendation a verdict in order to conduct a valid harmless error analysis?
2. Whether the death-sentencing procedures used in this case failed to comply with the Eighth and Fourteenth Amendments where the jury was advised repeatedly by the court that its recommendation would be non-binding?
3. Whether the state court violated the Sixth, Eighth and Fourteenth Amendments by giving the jury an instruction that relieved the prosecution of its burden of proving that petitioner had a careful plan or prearranged design to commit murder before the crime began in order for the jury to apply the cold, calculated and premeditated aggravating circumstance when rendering an advisory sentence of death?
4. Where the appellate court held it was error for the sentencer to find one or more of the aggravating circumstances, are the Eighth and Fourteenth Amendments violated by automatically holding the error harmless because the sentencer indicated that it would still impose the death penalty if valid aggravating circumstances remained?
Petitioner Tundidor sought review of the following questions:
1. Did the Supreme Court of Florida err in concluding, contrary to Hurst v. Florida, 136 S. Ct. 616 (2016), that a jury’s unanimous “advisory sentence” per se makes harmless the imposition of a sentence under a statute that violates the Sixth and Fourteenth Amendment?
2. Did the state court, err in affirming Petitioner’s death sentence even though, contrary to Caldwell v. Mississippi, 472 U.S. 320, 341 (1985), the trial court told the jury that its advisory sentence would be a recommendation not binding on the court?
3. Did it violate the Due Process Clause that there were pending criminal charges against the trial judge who denied Petitioner’s motion for new trial and sentenced him, and was Petitioner deprived of his right to effective assistance of counsel in so far as counsel filed an untimely motion to disqualify the judge?
The Court declined review of both cases, but not without the dissents from three Justices, all of whom would have remanded the cases to the Florida Supreme Court for consideration of the Eighth Amendment issue. Although Justice Breyer wrote separately from the dissent written by Justice Sotomayor (and joined by Justice Ginsburg), he agreed that “the Eighth Amendment requires individual jurors to make, and to take responsibility for, a decision to sentence a person to death.” In these cases, as Justice Sotomayor explained, the jury instructions “repeatedly emphasized that the jurors’ role in sentencing the defendants to death was merely advisory.” She noted the conflict with Supreme Court precedent in Caldwell v. Mississippi, a 1985 case that found it to “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”
The Supreme Court docket for Tundidor’s case can be found here and the docket for Middleton’s case can be found here.
WESSINGER v. VANNOY, No. 17-6844
Petition filed: November 17, 2017
Cert. Denied: March 5, 2018
Statement by Sotomayor, joined by Breyer
Petitioner Todd Wessinger, a death-sentenced prisoner in Louisiana, asked the Court to review his case alleging that neither his trial nor state post-conviction attorneys conducted a mitigation investigation, and if they had, they would have discovered his own “mental illness and brain damage, as well as a profound history of mental illness, alcohol abuse, and violence among his family members.” Although a federal district court held a five-day evidentiary hearing, granted Wessinger relief, and ordered a new penalty-phase hearing, the U.S. Court of Appeals for the Fifth Circuit (in a 2-1 opinion) reversed that decision. Petitioner presented the following questions for review to the Supreme Court:
- Where a state post-conviction court refuses a request for funds to conduct a mitigation investigation in a death penalty case, does counsel nevertheless have a duty himself or herself to investigate mitigation evidence?
- Does a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation constitute “cause” to overcome procedural default where that denial operated as an objective factor external to the defense which impeded development and presentation of an ineffective assistance of trial counsel claim during the state court proceeding?
- Does a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation render the available state corrective process ineffective to protect the rights of the applicant under 28 U.S.C. § 2254(b)(1)(B)(ii), such that state- court exhaustion of a claim of ineffective assistance of trial counsel based on the results of such an investigation is not required?
On March 5, the Supreme Court denied review of Wessinger’s case. Noting that the Fifth Circuit’s decision was inconsistent with both Supreme Court precedent and “the ‘bedrock principle in our justice system’ that a defendant has a right to effective assistance of trial counsel,” Justice Sotomayor dissented. Because of trial counsel’s failure to investigate, Sotomayor said, Wessinger’s jury never heard “significant mitigation evidence”—including that he suffered a stroke and seizures as a child, that he has a hole in part of his brain, and that his family history was replete with poverty, alcoholism and domestic violence—which may have convinced a juror to spare his life. She called the fact that Wessinger remains on death row, without having had a jury consider such mitigation, both “contrary to precedent and deeply unjust and unfair.”
The Supreme Court docket can be found here.
HIDALGO v. ARIZONA, No. 17-251
Petition filed: August 14, 2017
Cert. Denied: March 19, 2018
Statement by Justice Breyer, joined by Ginsburg, Sotomayor, and Kagan
Arizona death-row prisoner Abel Daniel Hidalgo petitioned the U.S. Supreme Court to review the constitutionality of the state’s capital punishment statute under the Eighth Amendment.
Questions Presented: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
After listing the case for conference ten separate times, the Supreme Court decided on March 19 that it would not grant review in this Arizona death-penalty case. The denial of certiorari was accompanied by an eight-page statement authored by Justice Breyer, and joined by Justices Ginsburg, Sotomayor, and Kagan. While those four justices agreed that certiorari was not appropriate in that case—where an evidentiary hearing was denied and therefore the record was not robust—they nevertheless expressed their view that the Arizona Supreme Court had not properly applied U.S. Supreme Court precedent when determining whether the state’s death-penalty statute was, in fact, constitutional.
Read more about the case from DPIC and read the petition, opposition, and reply, as well as the amicus briefs, filed here: SCOTUSBlog.
GUARDADO v. JONES, No. 17-7171, Petition filed: December 18, 2017
COZZIE v. JONES, No. 17-7545, Petition filed: January 24, 2018
Cert. Denied: April 2, 2018
Steven Cozzie and Jesse Guardado are prisoners who were sentenced to death under Florida’s old capital sentencing statute, which the Supreme Court held unconstitutional in Hurst v. Florida (2016) because juries only made an advisory recommendation regarding a sentence. The Court held: “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”
In these two cases, prisoners asked the U.S. Supreme Court to evaluate whether their death sentence violates the Eighth Amendment because under their juries were told that their sentencing recommendation was not binding. Under its decision in Caldwell v. Mississippi (1985), the Court found it was “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”
Justice Sotomayor dissented from the Court’s failure to review these cases, making these cases the fifth and sixth cases in which she’s authored dissents on the issue. (See above: Middleton v. Florida (No. 17-6580); Tundidor v. Florida (No. 17-6735); Truehill v. Florida (No. 16-9448); Oliver v. Florida (No. 17-5083).) Relying upon language from the Court’s Caldwell decision, Justice Sotomayor stressed that “the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” She criticized the Florida Supreme Court for again “fail[ing] to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post Hurst.” In a blunt footnote, she wrote the sentence “Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer”—followed by the English translation: “Everything has been said already; but as no one listens, we must always begin again.”
The Supreme Court docket for Cozzie can be found here and for Guardado can be found here.
TREVINO v. DAVIS, No. 17-6883, Petition filed: November 20, 2017
Dissent by Sotomayor, joined by Ginsburg
After winning a remand from the U.S. Supreme Court in May 2013, Texas condemned prisoner Carlos Trevino was denied relief on his claim of ineffective assistance of trial counsel in which he alleged counsel failed to investigate, develop, and present mitigating evidence—including that Trevino had fetal alcohol spectrum disorder from his mother drinking 18 to 24 cans of beer daily while pregnant, that he weighed 4 pounds at birth, and that his developmental delays (including wearing diapers until 8 years old) and cognitive impairments essentially resulted in him functioning as someone who is intellectually disabled. The U.S. Court of Appeals for the Fifth Circuit (2-1) rejected Trevino’s claim. The Fifth Circuit’s decision was based on its conclusion that Trevino’s new mitigation served as a double-edged sword because it came with instances of him acting violent. The question he presented to the Court was: “Whether Mr. Trevino was denied due process by the Court of Appeals’ improper evaluation of “double-edged” mitigation evidence, and misapplication of the standard for evaluating prejudice in the Wiggins context of a death-penalty case.”
The Court denied review, but Justice Sotomayor (joined by Justice Ruth Bader Ginsburg) dissented from that denial, writing that the Fifth Circuit’s focus on a “double-edged problem” was inconsistent with the Supreme Court’s clear precedent requiring that court’s assessing the impact of trial counsel’s failures must look at the new evidence “in the context of the whole record.” While there were instances of violence in Trevino’s history, Justice Sotomayor explained that this type of evidence was already presented at trial, and nonetheless, she said such evidence did not outweigh the importance of the new fetal alcohol spectrum disorder evidence that contextualized Trevino’s behavior—a fact that the sentencing jury never heard. Emphasizing the Court’s recognition that a defendant’s Sixth Amendment right to counsel is “critically important,” Justice Sotomayor said that if the Court does not correct the error that occurred here, then “Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.” She called the Court’s failure to intervene in this case as “indefensible,” noting the failure here was increased because it “sanctions the taking of a life by the state.”
The Supreme Court docket can be found here.
KACZMAR v. FLORIDA, No. 17-8148
Petition filed: March 14, 2018
Cert. Denied: June 18, 2018
In a case involving the application of Hurst v. Florida, in which the U.S. Supreme Court struck down Florida’s capital sentencing statute in January 2016, death-row prisoner Leo Louis Kaczmar, III asked the Court to provide guidance on how the state courts should review errors. The question presented in the petition is: “Whether structural error occurs, when after having been affirmatively misled regarding its role in the sentencing process so as to diminish its sense of responsibility, a jury fails to return a verdict of guilty beyond a reasonable doubt as to multiple critical elements necessary to impose the death penalty.”
Writing another dissent from the denial of certiorari in a Hurst-related case, Justice Sotomayor called the issue an “important Eighth Amendment challenge” and reiterated that for the reasons she already stated in Truehill, Middleton, and Guardado (see above), she would have granted review.
The Supreme Court docket can be found here.
EVANS v. MISSISSIPPI, No. 17-7245, Filed December 27, 2017
JORDAN v. MISSISSIPPI, No. 17-7153, Filed December 19, 2017
Cert. Denied: June 28, 2018
In two cases that challenged the constitutionality of Mississippi’s death penalty (see below for the questions presented in each case), Justice Breyer authored an eight-page dissent from the denial of certiorari. Reiterating his concerns voiced in dissent in Glossip v. Gross (2015), Justice Breyer explained that the two Mississippi cases present “special problems of cruelty or arbitrariness” and urged the Court to review whether the death penalty violates the Constitution. The fact that prisoner Richard Jordan has spent over 40 years on Mississippi’s death row, Justice Breyer said, requires the Court to address whether the lengthy delay violates the Eighth Amendment. Jordan has spent multiple decades on death row under conditions of solitary confinement because his death sentence has been vacated on three separate occasions; his prior sentences have been imposed in violation of the Constitution. Justice Breyer also emphasized the geographic arbitrariness of both Evans’s and Jordan’s sentences, noting that they had been prosecuted in a district that accounts for the largest number of death sentences in the state. “This geographic arbitrariness,” Breyer opined, “is aggravated by the fact that definitions of death eligibility vary depending on the State.” Mississippi is one of only a few states that allows defendants to be sentenced to death for felony robbery murder, where there is no requirement that a defendant actually intended to kill someone. In his last point stressing the need for the Court to review the constitutionality of the death penalty, Justice Breyer noted that “[f]our hours before Willie Manning was slated to die by lethal injection, the Mississippi Supreme Court stayed his execution and on April 21, 2015, he became the fourth person on Mississippi’s death row to be exonerated.” This, he said, provides evidence of unreliability of the application of the death penalty.
Petitions of Interest
JONES v. OKLAHOMA, No. 17-6943, Filed November 28, 2017
WOOD v. OKLAHOMA, No. 17-6891, Filed November 27, 2017
Petition denied on January 22, 2019
Two black men—Julius Jones (pictured, L) and Tremane Wood (pictured, R), who were each sentenced to death in Oklahoma County, Oklahoma, for separate incidents in which a white male was killed—have asked the Supreme Court to review their cases based on new evidence that Oklahoma’s death penalty unconstitutionally discriminates based on race. According to the petition filed with the Court, a 2017 study on race and capital sentencing patterns “found that non-whites accused of killing white males are statistically more likely to receive a sentence of death in Oklahoma on that basis alone, and controlling for other aggravating circumstances.”
The questions presented in each of the cases are:
(1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that [petitioner’s] death sentence is unconstitutional under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution?
(2) Whether Oklahoma’s capital post-conviction statute, specifically Okla. Stat. Ann. tit. 22, § 1089(D)(8)(b), and the OCCA’s application of the statute in [petitioner’s] case, denies [petitioner] an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the Fourteenth Amendment’s Due Process and Equal Protection Clauses?
As of June 18, the cases have been distributed for conference fourteen times.
Read the case-related documents in Julius Jones’s case here. Read the case-related documents in Tremane Wood’s case here.
JORDAN v. MISSISSIPPI, No. 17-7153, Filed December 19, 2017
Petition Denied (dissent by Breyer): June 28, 2018
Richard Jordan (pictured) has spent over 40 years on Mississippi’s death row for a crime that occurred in 1976. His death sentence vacated by the courts due to constitutional violations on 3 separate occasions. After his sentence was overturned for the third time, in 1991, a special prosecutor agreed that he should be sentenced to life without parole. That sentence, however, was vacated by the Mississippi Supreme Court because it was not a valid sentence option under the law existing at the time of the crime. The State re-sought the death penalty, and Jordan was sentenced to death for a fourth time. He is now before the U.S. Supreme Court presenting two questions:
1. Whether incarcerating a prisoner over four decades awaiting execution, even after the State found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose?
2. Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose?
As of June 18, the case had been distributed for conference nine times.
Read the case-related documents here.
EVANS v. MISSISSIPPI, No. 17-7245, Filed December 27, 2017
Petition Denied (dissent by Breyer): June 28, 2018
Timothy Evans (pictured) is a Mississippi prisoner who was convicted of robbery-based felony capital murder and subsequently sentenced to death. In his Petition, Evans argues that his death sentence is “a product primarily of geographic accident” because he was prosecuted in a district that has overused the death penalty and accounts for largest number of death sentences in the state.
The question presented to the Court in the Petition is:
“DOES THE DEATH PENALTY IN AND OF ITSELF VIOLATE THE EIGHTH AMENDMENT IN LIGHT OF CONTEMPORARY STANDARDS OF DECENCY AND THE GEOGRAPHIC ARBITRARINESS OF ITS IMPOSITION?”
As of June 18, the case had been distributed for conference fifteen times.
Read the case-related documents here.
RHINES v. SOUTH DAKOTA, No. 17-8791, Filed May 2, 2018
Petition Denied (without dissent): June 18, 2018
Petitioner Charles Rhines was sentenced to death by a jury in South Dakota. He presented the following question in his petition:
“In Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), this Court held that,’where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule [under a state rule of evidence] give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.’ Id. at 869. In the wake of Peña-Rodriguez, Charles Rhines, a gay man, sought to introduce in the South Dakota Supreme Court the statements of three of the jurors who had voted to sentence him to death. One juror stated that the jury ‘knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.’ Two other jurors indicated that another deliberating juror had said that locking Mr. Rhines up with other men for life imprisonment without parole ‘would be sending him where he wants to go,’ and that there had been ‘lots of discussion of homosexuality’ and ‘a lot of disgust.’ The state court ruled that Peña-Rodriguez did not require its no-impeachment rule to give way.
The question presented is “whether Peña-Rodriguez applies to Petitioner’s evidence that at least one juror relied on anti-gay stereotypes and animus to sentence him to death.”
Read the case-related documents here.
WILLIAMS v. LOUISIANA, No. 17-1241, Filed March 2, 2018
PETITION DISMISSED: June 1, 2018 ** Williams filed a motion voluntarily dismissing his petition after he reached a plea agreement with the State and was released from prison on May 22.
Petitioner Corey Dewayne Williams (pictured) was an intellectually disabled 16-year-old at the time he was charged with the murder of a pizza delivery man. Williams was standing in the front yard with several other people when the victim was murdered. Even though there was no physical evidence linking him to the murder itself, Williams eventually confessed to the crime with little details. The only other evidence against him was the statement of another witness (and potential suspect) to the crime, and Williams was convicted and sentenced to death. However, Williams’ death sentence was vacated after the Supreme Court ruled in Atkins v. Virginia (2002), that execution of those with intellectual disability violated the Eighth Amendment. The Petition notes that in finding that Williams was intellectually disabled, “[t]he court specifically credited evidence that Corey’s intellectual disability had caused him to take the blame for the misconduct of others.”
The Petition now raises questions about suppressed evidence that could help prove that Williams is innocent. According to the Petition, “[i]t is undisputed that, at Corey’s trial, the State suppressed a series of recorded statements from the night of the murder and shortly thereafter.” Specifically, the Petition says that the suppressed statements were “from witnesses on the night of the murder that Corey could not have committed the crime based upon observations immediately after the shooting; that the State’s sole eyewitness at trial had been seen with the murder weapon before the shooting; that the older men had threatened several people to change their stories; and that, prior to obtaining Corey’s confession, the police had suspected that the older men were conspiring to blame Corey.”
In the Petition, Williams presents questions related to suppression of evidence under the Supreme Court decision in Brady v. Maryland (1963), which held that state actors must provide defendants with information that is material and exculpatory:
Whether exculpatory evidence that is inadmissible can be material under Brady v. Maryland, 373 U.S. 83 (1963).
Whether a court evaluating the materiality of suppressed evidence under Brady against a confession should take into account a post-trial judicial finding that the defendant was an intellectually disabled child.
Read the case-related documents here.
