Ayers v. Belmontes (05-493) and order list

November 19, 2006 Supreme Court Update

Greetings, Court fans!
Sorry for the delay, but there's excellent news to report: Ken's son, Evan Cooper Heath arrived on Monday, November 13th. Ken and his newly expanded family are doing great. (For those of you who think that Court-watching in the fall is just not that exciting, we're doing our best to keep things interesting . . . at least on the personal front!)
The Court issued its first non per curiam opinion of the Term on Monday – giving Justice Kennedy the great distinction (in addition to being the Court's critical swing-voter) of winning of the semi-secret race to get the first opinion out. Perhaps a harbinger of things to come this Term, the 5-4 decision in Ayers v. Belmontes (05-493), featured the new conservative block of the Chief, Alito, Scalia, Thomas and Kennedy in the majority.
Reversing the Ninth Circuit's decision that overturned Belmontes' death sentence, the majority concluded that the trial court's jury instructions did not unconstitutionally preclude the jury from considering forward-looking mitigation evidence (that Belmontes could be a contributing member of society if incarcerated) in deciding whether to sentence Belmontes to death. The jury was charged on a variety of specific mitigating factors (all except one having to do with the specifics of the crime) and with "factor (k)," which instructed the jury to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Belmontes claimed that this instruction only permitted the jury to consider other mitigating evidence relating to the specifics of the crime itself and not evidence about his ability to be rehabilitated and contribute to society. Justice Kennedy quickly rejected this argument in light of two prior cases: Boyde v. California (1990), in which the Court held on direct review that factor (k) didn't preclude the jury from considering evidence of a defendant's background and character; and Brown v. Payton (2005), in which the Court held, on review of the Ninth Circuit's habeas decision, that factor (k) didn't preclude consideration of post-crime rehabilitation. Given this prior caselaw, the result would seem clear – but defendant argued that Brown was not controlling because it was decided under AEDPA, which imposed a highly deferential standard of review of the state court's decision. Belmontes' habeas petition was filed before AEDPA and therefore no such deference was required. Rejecting this argument, the majority explained that the key issue is 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." Here, the majority found it implausible that the jury would have failed to consider Belmontes' evidence because the trial court permitted him to put on the evidence (why allow such a charade if the jury couldn't consider it?), both the prosecutor and defense counsel focused on the evidence during argument, and the court instructed the jury that it should consider "all evidence" presented and that the specific mitigation factors charged were not exclusive, but were merely examples. Under these circumstances, it is highly unlikely that the jury would interpret factor (k) so narrowly as to preclude consideration of post-crime evidence, which the majority believed would constitute an extenuating circumstance under factor (k). Justices Scalia and Thomas issued a short concurrence to reiterate their position that states could limit the types of mitigating evidence considered by the jury without violating the Eighth Amendment.
The dissent, led by Justice Stevens, focused on the plain language of factor (k) and the history of states' efforts to limit the types of mitigating evidence that could be considered. At the time of Belmontes' trial, it was not at all clear that states could not limit such factors – and California's scheme of enumerated mitigation factors certainly appeared to do so. Further, the California Supreme Court effectively amended factor (k) not long after Belmontes' trial, requiring trial courts to allow the jury to consider "any other aspect of the defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death." And the legislature later amended factor (k) to make clear such evidence could be considered. Under these circumstances, it is not at all reasonable to assume that the jury considered Belmontes' forward-looking mitigation evidence. In fact, the prosecutor noted that he didn't think the evidence fell under factor (k) and there was some evidence of jury confusion about what evidence could be considered. Thus, the dissent would affirm the Ninth Circuit's decision reversing Belmontes' death sentence.
The Court also issued an extensive order list, denying review of dozens of cases, but granting cert in no new cases. Particularly interesting for our Connecticut Court-watchers, the Court denied review in Skakel v. Connecticut (06-52), in which Michael Skakel sought to challenge his conviction and life sentence for the 1975 murder of Martha Moxley, which was prosecuted 25 years after the crime was committed.
That's all for now and probably until after the Thanksgiving break. Best wishes!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400