Criminal
Jun. 26, 2002
Jury Must Decide Death, Court Says
WASHINGTON - In the second decision in two weeks that could reduce the number of executions in this country, the U.S. Supreme Court ruled that a jury rather than a judge must decide whether a defendant should be sentenced to death.
The 7-2 ruling extends the reach of the high court's 2-year-old watershed decision that gave juries authority over how punishment is imposed in many criminal cases.
However, it clashed sharply with a second ruling handed down Monday that seemed to limit the reach of that decision, in which a judge was allowed to determine facts that resulted in a much lengthier sentence for a North Carolina defendant.
The two decisions are "hard to put together," said Erwin Chemerinsky of the University of Southern California Law School.
In the death penalty case, the justices ruled that juries must decide beyond a reasonable doubt the aggravating factors necessary for a convicted murderer to be sentenced to death, rather than allowing judges to do so under the less-stringent preponderance-of-the-evidence standard. Ring v. Arizona, 2002 DJDAR 7047 (U.S. June 25, 2002).
Because the decision was made retroactive, 170 death-row inmates in five states are eligible for a new sentencing hearing, with the possibility of such hearings for another 530 inmates in four other states. And it may mean fewer death sentences in all nine states, some lawyers said.
In the second ruling, the justices held, 5-4, that a judge may decide the facts that lead to the imposition of mandatory minimum sentences on defendants in firearms cases. The case before the court, Harris v. United States, 2002 DJDAR 7035 (U.S. June 25, 2002), involved the brandishing of a weapon.
Had the justices required jurors to make such decisions, new sentences could have been required for thousands of prisoners, including those in California. In addition, it would have threatened the Federal Sentencing Guidelines and similar state schemes, lawyers familiar with the case said.
Both decisions interpreted the justices 5-4 decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), that under the Sixth Amendment right to a trial by jury, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt."
The apparently conflicting decisions show that, while "the court has drawn some lines, it is still tangled up in Apprendi," said Laurie Levenson of the Loyola Law School.
"Both sides have dug their heels into the ground," Levenson said. "The justices who didn't like [Apprendi] won't expand it, and those who liked it want to extend it to the logic behind it."
"For the true believers in the Apprendi majority, the logic behind the decision is that anything that impacts on a defendant's sentence should be decided by the jury," she added.
Douglas W. Kmiec, dean of Catholic University's Columbus School of Law, agreed that "the court is still troubled by Apprendi - it's struggling."
"The court is having a hard time articulating a standard because they haven't fully worked one out," Kmiec added. "Because that was not done here, they will have more death penalty cases involving Apprendi and other cases across the board."
Chemerinsky said, "My reading is the court is saying that crimes that trigger the death penalty are different from those that don't, that aggravating factors are different from the crime itself, while brandishing is not a separate crime."
"And the death penalty decision is an expansion of Apprendi, because the [sentencing] judge was not dealing with a sentence outside the maximum sentence of death," Chemerinsky said.
The Arizona death penalty case was brought by Timothy Stuart Ring, who was convicted in 1996 of first-degree murder, armed robbery and other charges stemming from the 1994 robbery of a Wells Fargo armored van in Sun City, Ariz.
Police found the van driver dead in the passenger compartment, killed by a shotgun wound to the head. The robbers had taken $833,000, $562,000 of it in cash.
Based on a tip, police officers searched Ring's home and found circumstantial evidence linking him to the crime. A state court jury convicted him of both the robbery and murder of the driver, leaving the judge to decide between life without parole and death.
At Ring's sentencing hearing, Maricopa County Superior Court Judge Gregory H. Martin heard from a co-defendant who had not testified at trial. The man, who had pleaded guilty to second-degree murder and had not yet been sentenced, testified that Ring was the leader on the job and had shot the driver.
Martin, rejecting Ring's mitigating factors and concluding that he had killed the driver, sentenced him to death.
On appeal, Ring contended that Apprendi cast doubt on Walton v. Arizona, 497 U.S. 639 (1990), which approved Arizona's procedure allowing judges to sentence defendants in capital cases.
In Apprendi, both Justice John Paul Stevens, who wrote the decision, and Justice Clarence Thomas tried to distinguish their holding from Walton.
But Justice Sandra Day O'Connor, in her dissent, said the majority's distinction was "baffling, to say the least."
O'Connor added, "If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today."
The Arizona Supreme Court, ruling last year on Ring's appeal, acknowledged that Apprendi raises "some question about the continuing viability of Walton."
But because the justices did not specifically overrule it, the court added, "we must conclude that Walton is still the controlling authority."
On Monday, the justices specifically overruled Walton in light of Apprendi.
"Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment," Justice Ruth Bader Ginsburg said.
Arizona's aggravating factors "operate as the functional equivalent of an element of a greater offense [of capital murder]," she added, and so must be "found by a jury."
"The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant's sentence by two years [as in Apprendi], but not the fact-finding necessary to put him to death," Ginsburg concluded.
O'Connor dissented, joined by Chief Justice William H. Rehnquist, another Apprendi dissenter.
"The Court has failed, both in Apprendi and in the decision announced today, to offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the 'increase in the maximum penalty' rule is not required by the Constitution," O'Connor said.
Among the "aftershocks of Apprendi," she added, have been the filing by inmates of thousands of appeals, habeas petitions and petitions for certiorari.
"[They have] caused an enormous increase in the workload of an already overburdened judiciary," she said.
About 170 death-row inmates in Arizona, Colorado, Idaho, Montana and Nebraska now likely will challenge their sentences under similar state laws, O'Connor said. And those in Alabama, Delaware, Florida and Indiana also will under laws that allow juries to recommend death sentences but give judges discretion to impose them.
In California, juries recommend a death sentence. Judges can uphold or overturn a death recommendation but, unlike in the nine states affected by Monday's ruling, cannot impose death unless a jury recommends it.
George Kendall of the National Association for the Advancement of Colored People Legal and Educational Defense Fund Inc. in New York called the decision "a natural application of Apprendi to capital offenses."
"It should mean most people in these [nine] states get relief, including the four states [in O'Connor's second category], because nearly 25 percent of those in Alabama were given death after the judge overrode the jury's failure to find aggravating circumstances," Kendall added.
That figure shows that juries are less likely to impose the death penalty.
"So we now will have fewer people on death row [in these states in the future]," he said.
Kent S. Scheidegger of the Criminal Justice Legal Foundation in Sacramento, who filed an amicus brief for Arizona, said, "It is a betrayal of the American people to overturn clear, well-established precedents after decades of reliance on them."
"It is particularly disturbing to see the court brush off [Walton] with only a single paragraph of boilerplate explanation," he added.
The second case decided Monday began in April 1999, when an undercover officer with the federal Bureau of Alcohol, Tobacco and Firearms came to the Albermarle, N.C., pawnshop owned by William Joseph Harris. The agent came with Harris' half brother, an informant, to buy some marijuana from Harris.
After the transaction, the half brother asked Harris about the gun he always wore in his holster while at the store. Harris showed the gun to the two men and explained that it had a high-capacity magazine and used bullets that could pierce an armored jacket.
The agent returned twice and bought more drugs from Harris, with no mention of the gun. Harris subsequently was indicted on two counts of distribution of marijuana and two counts of "carrying a firearm in relation to a drug trafficking crime," under 18 U.S.C. 924(c)(1)(A).
Before trial, the prosecutor dropped one drug count and one firearms count. Harris pleaded guilty to the other drug count but went to trial on the remaining firearms charge under Section 924. He was convicted.
U.S. District Judge William L. Osteen sentenced Harris to time served on the drug count and to the mandatory minimum sentence of seven years in prison for "brandishing" a gun during a drug-related crime - for showing it to the agent and informant. That was two years more than for merely possessing a weapon.
On appeal, Harris contended he had not brandished a firearm. He also argued that brandishing is an element of a separate offense that, under Apprendi, must be charged in the indictment and proved to the jury beyond a reasonable doubt.
The Richmond, Va.-based 4th U.S. Circuit Court of Appeals rejected both claims. It ruled that Harris' sentence was constitutional under McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that judges, on a preponderance of the evidence, may decide a sentencing factor used to trigger a mandatory minimum.
On Monday, the justices affirmed that decision, in an opinion by Justice Anthony M. Kennedy, an Apprendi dissenter. Kennedy was joined by fellow dissenters Rehnquist, O'Connor and Justice Stephen G. Breyer.
Also joining Kennedy, without comment, was Justice Antonin Scalia, who was in the Apprendi majority.
Kennedy first found that the federal gun law "regards brandishing and discharging as sentencing factors to be found by the judge, not offense elements to be found by the jury."
For this reason, Kennedy said the court declined to overrule McMillan.
"Apprendi's conclusions do not undermine McMillan's," he said. "There was no comparable practice of submitting facts increasing the mandatory minimum to the jury, so the Apprendi rule did not extend to those cases."
What's more, Harris was not sentenced above the maximum sentence, because both possession and brandishing carry the same maximum sentence, Kennedy added.
In a separate concurrence, Breyer said he was joining the decision, but not Kennedy's opinion.
"I believe that extending Apprendi to mandatory minimums would have adverse practical, as well as legal, consequences," said Breyer, a drafter of the Federal Sentencing Guidelines.
Thomas dissented, joined by Justices Stevens, David H. Souter and Ginsburg.
"Because, like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court's decision in Apprendi, I respectfully dissent," Thomas said.
Scheidegger, who also filed an amicus brief in this case for the government, praised the decision.
"Overturning McMillan would have incited an avalanche of appeals by criminals whose sentences were perfectly valid yesterday," he said.
"None of the reasons for departing from precedent were present in this case," Scheidegger added. "To have overruled existing law would have resulted in a colossal upheaval of our sentencing laws and endless litigation, not to mention a decreased respect for case law."
Stephen P. Halbrook of Fairfax, Va., who filed an amicus brief for Harris on behalf of the National Association of Criminal Justice Lawyers and the Cato Institute, said the ruling was a "slipshod linguistic decision."
"It reminds me of the Roman emperor who posted the law up so high you couldn't see it, so he could convict you," Halbrook added.
"It wouldn't have been so radical of a change [to rule for Harris]; the court could have kept the [Sentencing Guideline] ranges," Halbrook said. "A decision for Harris wouldn't have had the sky falling."
Monday's decisions leave the justices with only four cases to decide this term. Rehnquist announced that they will be handed down Thursday.
In other actions Monday, the justices:
• Ruled unanimously that the Constitution does not require prosecutors to disclose evidence that could impeach government witnesses before entering a plea agreement with a criminal defendant. The decision reverses a decision by the San Francisco-based 9th U.S. Circuit Court of Appeals in the case of a woman who was accused of smuggling 66.3 pounds of marijuana across the border from Mexico into California in a 1970 Mercury Cougar. United States v. Ruiz, 2002 DJDAR 7067 (U.S. June 24, 2002).
Writing for the court, Breyer said that a defendant's right to see exculpatory material, set out in Brady v. Maryland, 373 U.S. 83 (1963), and other cases is part of the Constitution's "basic fair trial guarantee" and does not apply outside the trial context.
In addition, supplying such material "would reveal the identities of cooperating informants, undercover investigators, or other prospective witnesses," Breyer said.
"[That could] disrupt ongoing investigations and expose prospective witnesses to harm," he said.
• Agreed to review next term another in a string of cases involving the states' immunity from suit in federal court under the 11th Amendment. The court will review a 9th Circuit decision that Congress validly abrogated the states' immunity from suit when it passed the family medical care provision of the Family and Medical Leave Act. Nevada Department of Human Resources v. Hibbs, 01-1368.
The case stems from a dispute between a Nevada state worker and his supervisors over whether he had exceeded his allotment of unpaid leave under the federal law to take care of his ailing wife. The worker sued the state after he was fired.
David Pike
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