Amen, preacher.
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A full-court press over Court of Appeals
by George Will

First published: Thursday, November 16, 2006


There should be two Supreme Courts, one to reverse the Ninth U.S. Circuit Court of Appeals, the other to hear all other cases. Last term, more of the Supreme Court's caseload -- 18 of 82 cases -- came from the liberal 9th Circuit, based in San Francisco, than from any other circuit, and the 9th was reversed in 15 of the 18. The 9th's winning percentage (.167) was worse than that of the 1962 Mets (.250). On Monday, in the first decision of this term, the Supreme Court reversed the 9th's fretfulness on behalf of Fernando Belmontes.

In order, as he explained to one of his accomplices, to "take out a witness," Belmontes used perhaps 20 blows with a metal dumbbell bar to bludgeon to death Steacy McConnell, whose home he had entered for a burglary. He emerged drenched with her blood and carrying her stereo that he sold for $100. She was 19. Belmontes killed her 25 years ago.

How did capital punishment jurisprudence reach its current baroque condition, in which cases live longer than did the murder victims? At the hands of judges such as Stephen Reinhardt, a residue of Jimmy Carter's presidency, who says Belmontes' "robbery gone wrong" lacked "especially heinous elements."

Belmontes was convicted of murder "with special circumstances," making him eligible for the death penalty. In the trial's penalty phase, the jury heard about his previous crimes, which included severely beating his pregnant girlfriend a month before murdering McConnell. Belmontes argued that he had an abusive and alcoholic father and had become a Christian (before beating his girlfriend). He also stressed -- this is called a "forward-looking mitigation" -- that he had been well-behaved in a previous incarceration and would contribute to society if sentenced to life in a prison's structured environment.

Belmontes' attorney asked the trial judge to specifically instruct the jury to consider Belmontes' ability to live acceptably in prison. Instead, the judge used California's "catchall mitigation instruction," which was declared constitutional in 1990. It tells a jury weighing capital punishment that it can consider many things (e.g., the use of force or violence, the defendant's age, any extreme mental or emotional disturbance, prior felony convictions). Belmontes' case turned on whether the jury understood one provision of the catchall instruction -- to consider "any other circumstance which extenuates the gravity of the crime" -- to include the "forward-looking" consideration that life imprisonment might be a suitable punishment.

Reinhardt, writing for the 9th's divided three-judge panel, overturned Belmontes' death sentence because the trial judge "failed to instruct the jury that it was required to consider" what Reinhardt considered Belmonte's "principal mitigation evidence" -- his aptitude for prison life. On Monday, the Supreme Court ruled 5-4 against the 9th.

Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, argued that there was a reasonable probability that the jury weighed Belmontes' "future potential."

Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented, arguing that because the trial judge never explicitly told the jury that it must consider Belmontes' capacity to live satisfactorily in prison, there is a "reasonable probability" that the jury did not.

Courts have enveloped the administration of capital punishment in so many arcane procedures that judicial opponents of capital punishment have vast latitude to speculate that a jury perhaps did not fully fathom its rights and duties, and hence the punishment is impermissible. And Steacy McConnells become afterthoughts.

There is something grotesque about an execution a quarter of a century after a crime. But there is something repellent about the jurisprudential hairsplitting that consumes decades, defeats the conclusions of juries' deliberations, and denies society the implementation of a punishment it has endorsed.

Belmontes' lawyer calls Monday's decision "an unwelcome setback" but cites "other issues," such as the quality of Belmontes' trial lawyer, that the 9th Circuit did not address. Well, there is, it seems, always a next time.

The Supreme Court recently heard arguments in another death penalty case. The question at issue is: Jim Studer and his parents wore a button featuring a photograph at the San Jose trial of the man who murdered Studer's brother 12 years ago. A circuit court's three-judge panel, divided 2-1, reversed the conviction, arguing that the button interfered with the defendant receiving a fair trial because the button enunciated the "specific message" that the murdered man was "the innocent party" and that the defendant was "guilty."

The circuit court was the 9th. The author of that opinion was Reinhardt. Tidying up after it, and him, is steady work.

Is it possible to reconcile the Supreme Court's opinion in Belmontes with Penry v. State, 178 S.W.3d (Tex.Crim.App.2005) which held in pertinent part:

"Because there is a reasonable likelihood that the jury believed that it could not give effect to mental impairment, outside of tending to show that the appellant is mentally retarded, the trial court erred in instructing the jury to 'consider whether any other mitigating circumstance or circumstances exist as defined herein.'

* * *

Although we may have sympathy for the trial court's position, we conclude that there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant's mitigating circumstances."

Any thoughts?

It sounds like the 9th Circuit would have the trial court give an instruction that sounds an awful lot like a comment on the weight of the evidence ("You are to consider all factors. You are specifically to consider the ability of the defendant to be nice if imprisoned."). The 9th circuit's opinion also appears to cast doubt on the ability of the jury to follow instructions (to consider all evidence). Result oriented case law is usually bad case law. This is an excellent example of what happens when the court (9th circuit) FIRST decides that the defendant should not get the death penalty and SECOND figures out how to conform (or contort) the actions of the trial court to reach their (preconceived) conclusion.

Lee, when I first read the opinion, I, too, thought that somewhere in there the SC would be overruling the Penry language you cite. Seems to me the Court just had to live with Penry but recognized they have gotten awfully hypertechnical in telling a jury about how to consider mitigating evidence.

quote:

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consider whether any other mitigating circumstance

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I don't get it.

Do they mean any other as in anything at all that might be mitigating?

Or any other as in circumstances other than those already specifically discussed?

I have always enjoyed reading George Will when he speaks on baseball. I am glad he got in a reference to America's pastime while showing the ineptness (?) of the Cali Circuit.

When he is not throwing a hissy fit about "statecraft being soulcraft," asserting we are undertaxed or genuflecting at the altar of the Orioles, George Will can be OK.