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.