End of Term (2 of 3) - Kansas v. March (04-1170) and Washington v. Recuenco (05-83)

July 5, 2006 Supreme Court Update

Greetings, Court Fans!

Every Term ends with a blitzkrieg. But we are almost there . . . only one more Update after this one.

In Kansas v. March (04-1170), the Court upheld Kansas's death penalty statute, which requires the death penalty if a jury unanimously finds that the State has proven, by clear and convincing evidence, that aggravating circumstances are not outweighed by mitigating circumstances (i.e., death must be imposed if the factors are in equipoise). Justice Thomas authored the decision for the 5-4 Court, which the Chief, Scalia, Kennedy and Alito joined (a bloc we've seen emerging these last few weeks as the Court grapples with the "hard" cases). The Kansas Supreme Court invalidated the statute, finding that it violated the Eighth and Fourteenth Amendments. In reversing, the majority found the Court's 1990 decision in Walton v. Arizona controlling. There, the Court upheld a scheme requiring death if there were aggravating circumstances and any mitigating circumstances did not call for leniency. (Some Walton dissenters interpreted the statute as requiring proof that mitigating factors outweighed aggravating factors, making its application nearly identical to the Kansas rule.) The Walton Court found no constitutional dilemma in requiring a defendant to prove mitigating circumstances "sufficiently substantial to call for leniency." The Constitution requires only that a jury be permitted to consider any mitigating evidence as part of the "individualized sentencing" requirement; states remain free to determine the manner in which mitigating and aggravating factors may be considered. "So long as the sentencer is not precluded from considering relevant mitigating evidence, a capital sentencing structure cannot be said to impermissibly, much less automatically, impose death." Practically, the Court thought that the Kansas statute was far better for defendants than the statute addressed in Walton, since Kansas places the burden on the State to prove by clear and convincing evidence that aggravating factors are not outweighed by mitigating factors, while the Arizona statute required the defendant to prove, by a preponderance of the evidence, that mitigating factors called for leniency. Finally, even if Walton was not controlling, Kansas's system is constitutional because it (1) rationally narrows the class of death-eligible defendants and (2) permits a jury to render a reasoned, individualized decision. Kansas's system merely channels the jury's discretion by giving it criteria to determine whether a sentence of life or death is appropriate. The jury is instructed that a finding that the factors are in equipoise is a finding for death – so there is no substance to the dissent's argument that such a finding reflects juror confusion or indecision about imposing death. (Scalia issued a separate concurrence, which we'll address in combination with the dissents.)

Justice Souter penned the principal dissent, in which Stevens, Ginsburg and Breyer joined. They would find Kansas's system unconstitutional because the "Eighth Amendment requires that a ‘tie go to the defendant when life or death is at issue.'" The Constitution precludes a mandatory death sentence in "doubtful cases" and a finding of equipoise cannot be said to be beyond doubt. Walton, the dissent would find, is not controlling, as the sentencing structure there arguably did not require death when the evidence was even. Moreover, the Constitution requires that death be imposed based on reasoned moral judgment and that the sentencer make an individualized decision based on specific facts relevant to the defendant and the nature of the crime – "a tie breaker system in favor of death fails on both counts." Further, requiring death where the aggravating evidence has failed to convince a jury is "morally absurd," and imposing death under these circumstances is all the more inappropriate given that new DNA evidence has cast doubt on the reliability of numerous capital convictions. In his concurrence, Scalia takes the dissent to task over this line of argument. First, the DNA evidence cited by Souter is hardly convincing (Scalia spends pages debunking many of the alleged "innocence" cases) and the reliability of DNA evidence goes to guilt, not sentencing. And to the extent such evidence is even relevant to sentencing, it represents a general attack on the death penalty, not a viable challenge to Kansas's system. It is not the business of the Court to second-guess the moral judgments of the states and the majority of individuals in the United States (who favor the death penalty), but merely to interpret the law.

Justice Stevens separately dissented to argue that the Court should not have granted cert where the Kansas Supreme Court arguably had provided more protection than the federal Constitution required. Left undisturbed, the Kansas decision would have had no precedential effect on other states; "what harm would have been done . . . if the Kansas court had been left undisturbed in its determination?" The only interest served by granting cert is "an interest in facilitating the death penalty in Kansas." Historically, the Court has focused on the States' failures to protect federal rights, not their willingness to go above and beyond the call to protect them, and that history supports a decision not to grant cert here. For Justice Scalia, this view on granting cert would create "a ludicrous rule"; Congress has a great interest in uniform federal law and it is the Court's job to be the final arbiter of what that law is.

Turning next to Washington v. Recuenco (05-83), the Court found that a trial court's application of a sentencing enhancement based on its own factual findings, in violation of Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), was not a structural error subject to automatic reversal but was instead subject to harmless-error review. A jury found Arturo Recuenco guilty of second-degree assault "with a deadly weapon," but did not make an express determination as to whether that weapon was a firearm. Nevertheless, the trial court imposed a three-year firearm sentencing enhancement based on its own finding that Recuenco used a firearm during the assault. While Recuenco was appealing his sentence, the Court decided Apprendi and Blakely, holding that a sentence may not be enhanced based on facts not found by a jury. Washington conceded that Recuenco's sentence violated those decisions but argued that the error was harmless (Recuenco did use a firearm). The Washington Supreme Court disagreed, finding that a Blakely error is structural and always requires reversal, but seven members of the Court disagreed. Led by Justice Thomas, the Court relied on Neder v. United States (1999), where it found that failure to charge the jury on a particular element of an offense in favor of a judicial finding was not structural error because it did "not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." (The Court could not find that judicial factfinding "seriously diminishe[d] accuracy.") As there is no reasonable basis to distinguish between failing to charge an element of the crime and failing to charge a sentencing enhancement, the Court reversed and remanded to the Washington courts to determine whether the error here was harmful. Justice Kennedy issued a short concurrence to note that the Court does not revisit the merits of Apprendi and Blakely (two decisions with which he strongly disagrees), but merely "describes their holdings accurately."

Ginsburg and Stevens dissented. They would find that the Washington Supreme Court's remedy of reversal for recharging in accordance with the verdict (as found by the jury) to be appropriate given that the prosecutor shifted courses after trial but before sentencing. There are separate pattern jury instructions and interrogatories for assault "with a deadly weapon" and assault "with a firearm." The prosecutor tried Recuenco under the first theory, and the jury provided a complete verdict on that theory (unlike Neder, where the jury was not charged and thus did not consider one element of a crime). The prosecutor than changed horses and sought a different, and more severe, sentencing enhancement based on the alleged use of a firearm (which carried a longer sentence compared to mere use of a deadly weapon). The dissent found it inappropriate for Recuenco to be charged with one crime (assault with a deadly weapon) and convicted of another (assault with a firearm) "sans charge, jury instructions, or a jury verdict." As in Kansas v. March, Stevens dissented separately to emphasize that he would not have granted cert in this case since Washington's decision only had the ability to overprotect federal rights and because, arguably, Washington's decision had an adequate and independent state-law basis.

We'll have the final Update, with the last two decisions, to you later this week.

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