What A Jury Would Infer

Ayers v. Belmontes

Belmontes (respondent) was found guilty of murder and sentenced to death. He appeals from the instruction that the jury should consider (“factor (k)”) “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” on the basis that this instruction barred the jury from considering his forward-looking mitigation that he would lead a constructive life if merely incarcerated (based on his participation with prison ministries while incarcerated).

The court has upheld factor (k) against challenges that its focus on extenuating the gravity of the crime denies consideration of factors unrelated to the crime, holding that the proper inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence,” because for the jury to conclude that factor (k) barred consideration of that evidence it would have to draw the unlikely inference that “the court’s instructions transformed all of this ‘favorable testimony into a virtual charade.’” (Boyde). In another case (Payton) factor (k) was upheld when a prosecutor incorrectly told the jury that is barred consideration of post-crime rehabilitation, since this statement was corrected, and because that case was a habeas case with a higher burden on respondent than this one (this case is not governed by AEDPA).

Payton held that this factor (k) does not carry a reasonable likelihood that a jury will incorrectly apply it to bar consideration of post-crime evidence, and Boyde held the same for good-character evidence. Given the full discussion, the jury would have believed that the prosecutor’s statements that this evidence didn’t belong in any category were based on the persuasiveness of the evidence, not its admissibility. Other questionable statements (such as arguments that the law does not mitigate punishment simply for having religion) are better understood as a recognition of the dichotomy between a legal excuse and extenuating evidence; or distinctions between respondent’s religion per se (not what he was trying to introduce) and his potential future contributions (which he was trying to introduce. The judge also instructed that while the aggravating factors must be limited to those read to the jury, there was no such limit on mitigating factors. Some questions from a juror could be read to indicate that she thought only those factors listed could be considered, but a) there are other logical readings of the exchange, and b) even if that had been the case, factor (k) is on that sheet.

Justices Scalia and Thomas, concurring: A jury need only be able to consider in some manner all of a defendant’s relevant mitigating evidence,” and need not “be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.” (Johnson v. Texas)

Justices Stevens, Souter, Ginsburg, and Breyer, dissenting: Factor (k)’s restrictive language, and its presence on a list of very specific factors that directly relate to the crime sent the unmistakable message that juries could not consider evidence that did not extenuate the severity of the crime. Both sides made it clear that they were not addressing evidence directly relating to the crime, and the judge denied the request for an instruction that the jury could consider “any other circumstances,” and the judge passed up multiple opportunities to make this concept clear

Boyde held that factor (k) did not prevent the defendant from having evidence that demonstrated his ability to live a productive life in prison, as evidence that the defendant was less culpable generally as a person, from being given effect, not on its own terms. Payton was explicitly premised on a different standard of review. The dichotomy between a legal excuse and an extenuating circumstance will not be apparent to a jury, nor would a jury understand that “remorse” is a species of post-crime evidence that reduces the crime itself. There is a reasonable likelihood that the jury in this case did infer what it later took litigation in California courts to settle.

tap... tap... tap...

Ok, so there haven't been any decisions yet, and we are reaching the point where I will have to put them off if they do start coming out. That's probably why I am so susceptible to the latest from the rumor mill about another justice announcing a retirement at the end of this year. Ponder, for a moment, who it could be and how that could change the outlook on the law for (oh, say, 15 years).

Also, the National Review Online has an article about the partial birth abortion ban that the Court heard a few days ago. The discussion is pretty trite, but the end brings up a topic that I have been thinking about a lot lately. Apparently, the partial birth abortion ban is justified on the grounds that Congress can regulate interstate commerce. But wait, you say, how does a law about abortions apply to interstate commerce? Well, I don't know, but we have the assurance of the law itself, by way of an explicit provision that it shall only apply to cases where interstate commerce is implicated.

So here is my take on that. It is irresponsible, improper, and (I believe) an unconstitutional delegation of authority to write a law so broadly that its meaning is essentially left up to the courts. The Court has already declared that it has no interest in receiving laws that are deliberately overbroad, and taking responsibility for narrowing them down so that they are constitutional, and it shouldn't. So, my suggestion, when the Court comes across a law that is fundamentally and egregiously overbroad, such as the lately failed South Carolina ballot initiative to ban abortion, the Court should not honor severability clauses where by doing so it essentially takes the job of the legislature (seveability clauses being those parts of the law declaring that the remainder of a law will continue in force and effect if one provision is found unconstitutional).

Of course, I am not saying the partial birth abortion ban is one of those laws (I actually doubt it is, but I haven't read it), but the article seems to just assume that the Court will take it upon itself to clean up Congress' mess.

Edit: ok, so apparently adding "if it affects interstate commerce" is a more common phenomenon than I thought. I still find it objectionable because it forces those subject to the law to evaluate the Commerce Clause just to figure out when their actions are controlled by the law, an evaluation that few people (lawyers included) are qualified to make.

Also, it occurs to me that what I said above implicitly suggests that courts should not allow as applied challenges to the law. I think, however, that the two solutions are more similar than they sound. Not honoring severability clauses would prevent courts from choosing the precise extent to which the law violates the Constitution, which extent would change depending on the circumstances of the challenge. Prohibiting as-applied challenges would effectively do the same thing, but only to the extend that the offending clause was severable per se from the rest of the law. So, I guess the no-as-applied challenges rule would be marginally better in theory; I have no basis to evaluate what the difference would be in practice.