U.S. Supreme Court

U.S. Supreme Court Reverses Oklahoma Case Over Improper Victim-Impact Testimony

The U.S. Supreme Court has reversed a decision of the Oklahoma Court of Criminal Appeals that affirmed the death sentence imposed on Shaun Michael Bosse. In a unanimous per curiam decision issued October 11, the Court held that Oklahoma prosecutors had improperly presented testimony from three members of the victims' families asking the jury to sentence Bosse to death. The Court had ruled in 1987 in Booth v. Maryland that the use of victim-impact testimony in determining whether a capital defendant would be sentenced to death violated the 8th Amendment. Four years later, after a personnel change on the Court, it retreated from part of that decision, holding in Payne v. Tennessee that the presentation of testimony relating to the effect of the victim's death on his or her loved ones was constitutionally permissible. The Oklahoma Court of Criminal Appeals then ruled that Payne had implicitly overruled Booth in its entirety, permitting Oklahoma prosecutors to present highly emotional pleas from victims' family members asking juries to impose the death penalty. Oklahoma was the only jurisdiction in the country to interpret Payne in that manner, and Bosse's petition for review argued that "Oklahoma stands alone" and that its "outlier" practice was unconstitutional. The Supreme Court summarily reversed the Oklahoma court, writing that it has never overruled the portion of Booth that prohibits victims' family testimony offering "opinions about the crime, the defendant, and the appro­priate punishment." The Court further declared that its decision in Booth "remain[s] binding prec­edent until we see fit to reconsider [it]." While the Bosse decision prevents Oklahoma prosecutors from presenting this type of testimony in the future, its impact on the numerous other cases in which Oklahoma prosecutors presented this testimony is less clear. The Court remanded Bosse's case to the Oklahoma Court of Criminal Appeals, which may consider whether the improper testimony constituted harmless error. Similar harmless error review may be required in other Oklahoma cases.

U.S. Supreme Court Hears Argument in Buck v. Davis, Texas Case Dealing With Racist Testimony

The U.S. Supreme Court heard oral argument on October 5 in Buck v. Davis, a Texas case in which Duane Buck was sentenced to death after his own lawyer presented expert testimony from a psychologist who called Buck more likely to commit acts of violence in the future because he is Black. While Cecilia Marshall, widow of Thurgood Marshall, and Buck's stepsister, Phyllis Taylor—a survivor of the shooting—observed from the audience, Buck's counsel told the Court that the jury had sentenced Buck to death penalty based upon "a false and pernicious group-based stereotype" that equated being Black with being dangerous. Each of the seven justices who spoke during the hearing sharply criticized trial counsel's conduct, with Justice Samuel Alito saying "what occurred at the penalty phase of this trial is indefensible." Six other defendants whose cases had been tainted by similarly biased testimony by the same psychologist have already received new sentencing hearings, but Buck has not. Texas argued that Buck's case is unique because his defense attorney, not prosecutors, invited the biased testimony. Buck's attorneys previously sought review of his case on the grounds that his lawyer was ineffective, but the U.S. Court of Appeals for the Fifth Circuit denied Buck a "Certificate of Appealability" (COA), which allows a defendant's claims to be heard on the merits by an appeals court. During argument, the Justices raised concerns about the disparate rates at which Circuit Courts grant COAs. The Fifth Circuit denies them in about 60% of cases, while the Eleventh and Fourth Circuits deny them in only 6% and 0% of cases, respectively, meaning that defendants in the Fifth Circuit receive less review of their claims than those in the Eleventh or Fourth. Justice Elena Kagan said, "[I would assume] you think this is such an extraordinary case, and that the 5th Circuit got this so wrong, that it’s the best proof that there is that the court is approaching the COA inquiry in the wrong way." Justice Stephen Breyer agreed, saying, "It seems to me it proves the arbitrariness of what’s going on." (Pictured: Buck's lead counsel, NAACP Legal Defense Fund Litigation Director Christina Swarns, being interviewed on the steps of the Court.) 

U.S. Supreme Court Denies Review of Arizona Case That Could Overturn 25 Death Sentences

In a decision that could affect an estimated 25 Arizona death penalty cases, the U.S. Supreme Court has denied Arizona's request to review a federal appeals court decision declaring unconstitutional an evidentiary rule that limited the types of mitigating evidence capital defendants could present in their cases. The ruling in Ryan v. McKinney let stand a 6-5 decision of the U.S. Court of Appeals for the Ninth Circuit in December 2015 that had reversed James McKinney's 1993 death sentence because the state's so-called "causal nexus" rule unconstitutionally excluded evidence about McKinney's abusive childhood and post-traumatic stress disorder. The Court's ruling could have implications for many of the prisoners on Arizona's death row. The causal nexus rule, which required that mitigating evidence be directly linked to the crime before it could be considered as grounds to spare a defendant's life, had been place in Arizona from the late 1980s until 2005. In 1978, the Supreme Court ruled in Lockett v. Ohio that states could not bar defendants from presenting mitigating evidence relating to their character, background, or record or the circumstances of the case as reasons to impose a life sentence. Four years later, in Eddings v. Oklahoma, it held that states could not require that evidence excuse the murder before it could be considered mitigating. Then, in 2004, in Tennard v. Dretke, it reiterated that any requirement that mitigating evidence have a direct causal link to the offense violated the Eighth Amendment. By denying review, the Supreme Court paved the way for other prisoners whose sentencing was affected by the causal nexus rule to challenge their death sentences. In a dissent to the Ninth Circuit decision, Judge Carlos Bea wrote that the majority decision, "calls into question every single death sentence imposed in Arizona between 1989 and 2005." McKinney's case will return to state court within 120 days for further proceedings, according to the Arizona Attorney General's Office. His re-sentencing must now be done by a jury because the U.S. Supreme Court 2002 decision in Ring v. Arizona ended the state's practice of judges imposing death sentences.

LAW REVIEW: "The Death Penalty and the Fifth Amendment"

Some proponents of the death penalty—including the late Justice Antonin Scalia and the 2016 Republican Party platform—have asserted that the Supreme Court cannot declare the death penalty unconstitutional because the Framers included reference to the punishment in the text of the Fifth Amendment. An article by Duke Law School Professor Joseph Blocher, published in the Northwestern University Law Review, critically analyzes that argument and concludes that the Fifth Amendment's acknowledgment of the death penalty as an acceptable practice in the 1700s does not foreclose judicial review of the constitutionality of the practice under the Eighth Amendment or any other constitutional amendment. This, Blocher says, is because the Fifth Amendment contains restrictions on the exercise of government power, rather than affirmatively granting the government any constitutional power. The Fifth Amendment, Blocher writes, "contains three prohibitions on the use of capital punishment." The Grand Jury Clause prohibits the government from bringing charges against a person "for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The Double Jeopardy Clause prohibits twice placing any person "in jeopardy of life or limb" for the same offense. The Due Process Clause prohibits depriving any person "of life, liberty, or property, without due process of law." No one would argue that the mention of deprivation of limb in the Double Jeopardy Clause constitutionally legitimizes amputation as a criminal punishment. And by imposing constitutional limits on government conduct in attempting to take a defendant's life, Blocher says "there is no reason to suppose that [the Fifth Amendment] somehow nullifies other constitutional prohibitions—most importantly, the ban on cruel and unusual punishment." He notes that the Ninth Amendment reinforces this reading, "The Ninth Amendment indicates that the entire Bill of Rights—let alone any particular provision of it—cannot be read as an exclusive list. ...Compliance with the Fifth Amendment does not provide the death penalty a safe harbor against constitutional challenges, including those derived from the Eighth Amendment." Blocher concludes that to the extent reasons may exist not to abolish the death penalty, "the Fifth Amendment is not one of them."

BOOKS: Justice Breyer's Dissent in Glossip v. Gross, Edited and Contextualized

In a new book, Against the Death Penalty, Professor John Bessler of the University of Baltimore School of Law presents Justice Stephen Breyer's historic dissent in Glossip v. Gross, which questioned the continuing constitutionality of capital punishment in the United States, in a new format intended to make the opinion more accessible to a broad audience. "I tried to contextualize the opinion by doing a longer introduction which makes the opinion into a book and summarize what the other justices did in their opinions," Bessler told the National Law Journal. In his Glossip dissent, which was joined by Justice Ruth Bader Ginsburg, Breyer raised—and set forth a potential blueprint for answering—a number of questions concerning the constitutionality of the death penalty. Breyer wrote: "Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." Bessler praised Breyer's efforts to make his dissent more widely available, saying, "One of the things Justice Breyer been really good at has been going out there with his books, trying to engage the public about the importance of the law and the Constitution. He wants to get his ideas out. ...I think this will be picked up and read by people and, hopefully, they will get a better understanding of the Eighth Amendment and the death penalty itself."

Former Judges, Criminal Defense Associations File Briefs Supporting Missouri Inmate Who Was Denied Funding for Counsel

A group of 16 former state and federal judges and three of the nation's preeminent criminal defense organizations have filed briefs in the U.S. Court of Appeals for the Eighth Circuit in support of Missouri death row inmate Mark Christeson's efforts to be afforded a meaningful opportunity to investigate and present his claims to the federal courts. Christeson was nearly executed in 2014 without ever having any federal court hear his case, after the lawyers appointed to represent him in his federal proceedings failed to meet with him until six weeks after his filing deadline had passed. After the U.S. Supreme Court ordered the district court to appoint new lawyers, a Kansas City-based court directed them to submit a proposed budget for the case. Then, without explanation, it refused to fund 94% of their requested budget, limiting the defense to $10,000 for the entire capital case. The amicus briefs urge the Eighth Circuit to overturn the funding decision, arguing that it effectively deprives Christeson of his right to counsel. The former judges brief, organized by Constitution Project, calls the district court’s ruling “nakedly partisan,” reading “less like a judicial opinion and more like a prosecutor’s brief.” They say "“When attorneys lack adequate funds to investigate and prepare submissions in a capital habeas case, the adversarial process cannot perform its essential function of revealing the truth.” In particular, they say the funding ruling prevented counsel from developing and presenting mental health evidence that Christeson's severe cognitive impairment left him unable to assert his own rights after his previous counsel had abandoned him. The second brief, filed by the National Association for Public Defense, the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association, joined by the MacArthur Justice Center at St. Louis, argued that, "It is not possible to maintain the integrity and fairness of capital punishment, and habeas proceedings generally, if district court judges continue to interfere with representation in this manner with no check on their abuse of discretion." Mae Quinn, the Director of the MacArthur center, said the denial of resources "is sadly consistent with the culture and ongoing challenges faced by the Missouri criminal and juvenile defense bar." Missouri ranks 49th in the nation in funding indigent defense.

Defense Lawyers, Former Prosecutors, and Constitutional Rights Groups File Amicus Briefs in Buck v. Davis

Five groups, representing defense lawyers, former prosecutors, and organizations devoted to protecting constitutional liberties have filed amicus briefs in the U.S. Supreme Court in support of Texas death row prisoner Duane Buck. Buck was sentenced to death when a psychiatrist presented by his own lawyer said he posed a greater potential danger to society because he is Black, and the case attained widespread notoriety after the new Texas attorney general failed to honor a commitment by his predecessor not to oppose a new sentencing hearing. On August 4, the National and Texas Associations of Criminal Defense Lawyers, a group of former prosecutors, the Lawyers' Committee for Civil Rights Under Law, and the Constitutional Accountability Center joined the National Black Law Students Association (NBLSA) in submitting briefs arguing that Buck's rights were violated by the racial arguments made at his trial. The NBLSA said, "Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice." The Lawyers Committee for Civil Rights Under Law stated, "Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf." The former state and federal prosecutors, who include former Texas Governor and Attorney General Mark White, former Attorneys General from Virginia, Tennessee, North Carolina, and Ohio, and the second-chair prosecutor from Buck's trial, highlighted Texas' refusal to provide Buck a new sentencing hearing, even though it had included him on a list of defendants whose trials were tainted by similar testimony by the same psychologist, and every other one of those defendants had received new sentencing hearings. "To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony," they said. The Court is scheduled to hear argument in Buck v. Davis on October 5. 

U.S. Supreme Court Orders Reconsideration of Three Cases in Light of Jury Selection Decision

The U.S. Supreme Court granted writs of certiorari in three jury discrimination cases on June 20, vacating each of them and directing state courts in Mississippi, Alabama, and Louisiana to reconsider the issue in light of the Court's recent decision in Foster v. Chatman. Two of the petitioners, Curtis Flowers of Mississippi and Christopher Floyd of Alabama, are currently on death row. The third, Jabari Williams, was convicted in Louisiana of second-degree murder. Earlier this year, the Supreme Court granted Timothy Foster a new trial because prosecutors illegally excluded blacks from his jury. Flowers, Floyd, and Williams all raised issues of racial discrimination in jury selection that were rebuffed in the state courts. As in Foster's case, the prosecutor's notes in Floyd reflect race-conscious jury strikes. Floyd's prosecutor marked African American potential jurors with a "B" on its list of jurors to remove, then struck 10 of 11 black prospective jurors. Flowers has been tried six times. His first two convictions were overturned because of prosecutorial misconduct, and his third as a result of racial bias in jury selection. His fourth trial ended in a mistrial and his fifth trial resulted in a hung jury. At his most recent trial, eleven white jurors and one black juror convicted him after just 30 minutes of deliberation. The Equal Justice Initiative, which represents Floyd, released a statement saying, "Racial bias has been a longstanding problem in Alabama, where more than two dozen cases have been reversed after courts found that prosecutors engaged in intentional racial discrimination during jury selection." EJI Executive Director, Bryan Stevenson, said racial bias in jury selection “undermines the integrity of the criminal justice system.” He told the Montgomery Advertiser, "What we’ve found is regardless of the race of the defendant, a lot of prosecutors appear not to trust black people in juries, which is illegal and unconstitutional.”