Wake Forest Law Review
17Nov

Death Knell for Death Penalty After the Parkland Shooter Verdict?

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By Kendall Carter

Florida has executed more people than just about any other state.[1]  However, Florida also gets it wrong more than anyone else.  Florida has had thirty exonerations from death row, more than any other state, and it’s not even close.[2]

On October 13, 2022, after months of proceedings, a Broward County jury recommended a sentence of life in prison without the possibility of parole for each of Nicholas Cruz’s 17 counts of first-degree murder.[3]  Cruz carried out the February 14, 2018, massacre at Marjory Stoneman Douglas High School in Parkland, Florida, slaying fourteen students and three faculty and staff members.[4]  Cruz had plead guilty to the charges last year, so the jury trial focused solely on the sentencing phase.[5]  Prosecutors submitted seven aggravating factors—circumstances required to make an individual guilty of first-degree murder eligible for the death penalty—including that the offender created a “great risk of death” to many persons, the homicides were especially heinous, atrocious, and cruel, and the homicides were committed in a cold, calculated, and premeditated manner.[6]  The defense submitted forty-one mitigating factors,[7] far more than the seven statutorily defined mitigating factors, relying on the residual provision in Fla. Stat. § 921.141(7)(h) to present “any other factor[s]” that would make the imposition of a life sentence more appropriate.[8]  One statutory factor presented was that “the defendant was under the influence of extreme mental or emotional disturbance” when the crime took place.[9]  One “other factor” presented was that Cruz’s mother’s heavy alcohol use while pregnant “poisoned” Cruz, leading to fetal alcohol spectrum disorder.[10]  While the jurors unanimously determined that the prosecutors had proven seven aggravating factors beyond a reasonable doubt,[11] three of the jurors did not agree that the aggravating factors outweighed the mitigating factors.[12]  As such, the jury could not recommend a sentence of death.[13]

Many of the victims’ families expressed shock and outrage at the verdict, including Linda Beigel Schulman, whose son, Scott Beigel, a geography teacher at Stoneman Douglas, was killed.[14]  After the verdict was read, Ms. Schulman lamented, “If this was not the most perfect death penalty case, then why do we have the death penalty at all?”[15]  Fred Guttenberg, whose 14-year-old daughter, Jamie, was also among the victims, said, “This jury failed our families today.  Seventeen families did not receive justice.”[16]  Surprise, however, was not limited to the victims’ families.  Indeed, “[w]ith the trial being watched worldwide and with ample evidence of the brutality of Cruz’s rampage, many legal observers had believed Cruz’s defense team faced an uphill battle in convincing a jury to spare his life.”[17]  This was the deadliest mass shooting to be adjudicated by a trial in the U.S., yet it still didn’t result in a death verdict.[18]

One may, understandably, feel that a life without parole sentence in such a high-profile case—in a death penalty-friendly state like Florida, no less—might signal a shift in public sentiment against the death penalty.  Certainly, support for the death penalty in the U.S. is at its lowest point (fifty-four percent) since 1972,[19] when the Supreme Court issued, what amounted to, a four-year moratorium on the death penalty in Furman v. Georgia, but this verdict reveals a far more complex picture of where the death penalty stands in America.[20]  On one hand, says Former Miami-Dade senior homicide prosecutor Abe Laeser, defense attorneys will likely use this case as leverage with prosecutors: “[A] lawyer will say, ‘My client didn’t shoot 17 school kids with 139 bullets.  If that guy doesn’t deserve it, my guy doesn’t deserve it.’”[21]  Likewise, Laeser predicts, “Across the board, prosecutors who are pro-death penalty are going to be in a difficult position to make their cases to trial juries and trial judges.”[22]

On the other hand, Cruz’s verdict appears to have galvanized pro-death penalty sentiment in Florida, spurring demands to reform Florida’s death penalty laws.[23]  In recent years, the death penalty has been overhauled in Florida.[24]  First, in 2016, the Supreme Court of the United States ruled that Florida’s death penalty was unconstitutional as it violated the Sixth Amendment’s guarantee of the right to a jury trial.[25]  The Florida sentencing statute at the time “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’”[26]  Additionally, Florida’s capital punishment-specific statute tasks the trial court alone with the finding “[t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”[27]  This effectively meant that the jury’s recommendation was “advisory only,” empowering judges to find that a death sentence was warranted, even if the jury recommended life in prison.[28]

However, during this time, another element of Florida’s sentencing statute elicited questions.[29]  A simple majority vote was all that was required in Florida, one of only three states that permitted nonunanimous jury recommendations in capital sentencing.[30]  Not only could death sentences be overruled by the judge, but also, they need not be unanimous.[31]  Hurst called Florida’s death penalty practices into question, so the legislature amended the death penalty statute to align Florida’s practice with constitutional principles.[32]  First, the March 2016 amendment eliminated judges’ ability to override jury sentencing recommendations.[33]  Second, the amendment mandated that jurors unanimously determine that the prosecution has proven aggravating factors, making the defendant eligible for a possible death sentence.[34]  Finally, the statute no longer permitted a simple majority to impose the death penalty but did not go so far as requiring a unanimous vote, instead requiring that at least ten jurors sign on to the ultimate death sentence.[35]  However, in October 2016, the Supreme Court of Florida struck down the statutory amendment because while aggravating factors must be found by unanimous vote, the statute still did not require a unanimous vote for the ultimate imposition of the death penalty.[36]  As a result, it was not until March 2017 that death sentences in Florida had to be unanimous, after the Florida legislature again amended the statute.[37]  It is this statute that guided the prosecution in Cruz’s case.[38]

With Ron DeSantis securing reelection as governor of Florida in a decisive victory earlier this month,[39] Florida is poised to make a significant change in its death penalty policies.[40]  At a campaign stop on October 16, 2022, Governor DeSantis expressed his frustration at Cruz’s jury verdict, lamenting, “I’m sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment.”[41]  Governor DeSantis also signaled his intentions to work with the Florida legislature to reform the laws governing the death penalty, hinting at Florida’s fickle sentencing statute.[42]  During DeSantis’s first term as governor, as many people were executed as were exonerated from Florida’s death row.[43]  Yet Governor DeSantis looks to return to the prior sentencing regime, specifically sanctioned by the United States Supreme Court, that would allow fewer than twelve jurors or even just one particularly pro-death judge to sentence a criminal defendant to death.[44]  When death verdicts are easier to come by, it is easy to see how innocent people get swept up in the melee. Eliminating the need for unanimous jury verdicts in capital cases would, warns Robert Durham, executive director of the Death Penalty Information Center, “make it more likely innocent people will receive the death penalty.”[45]  Durham directly attributes Florida’s high exoneration rate to its history of relying on nonunanimous juries to sentence its defendants to death.[46]  Given that he plead guilty last year, Cruz’s case is probably not one that elicits concerns of a possible exoneration down the line.  Nonetheless, the high-profile nature of the case opens the door to significant changes in the way Florida juries hand down death sentences.  As a result, future defendants whose guilt is less than certain may have only ten or even seven jurors to decide if they live or die.  If Governor DeSantis keeps his word to make imposing the death penalty easier in Florida, the Broward County jurors may have had more of an impact on the future of the death penalty than they realized when they took their oaths.

[1] Executions Overview, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/executions-overview. Only Texas (577), Oklahoma (118), and Virginia (113) have carried out more executions since 1976.

[2] Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/florida; Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence.  The state with the second highest number of exonerations is Illinois with 22, and then the numbers fall off from there.

[3] Dakin Andone et al., Parkland School Shooter Avoids the Death Penalty after Jury Recommends Life in Prison, CNN (Nov. 9, 2022, 11:47 PM), https://www.cnn.com/2022/10/13/us/nikolas-cruz-jury-deliberation-thursday.

[4] Id.

[5] Id.

[6] Id.; Fla. Stat. § 921.141(6).

[7] Andone et al., supra note 3.

[8] Fla. Stat. § 921.141(7).

[9] Patrick J. Lyons & Patricia Mazzei, ‘Mitigating Circumstances’ Spared the Gunman’s Life. What Are They?, N.Y. Times (Oct 13. 2022, 2:21 PM), https://www.nytimes.com/2022/10/13/us/mitigating-factors-parkland-jury.html?smid=url-share.

[10] Id.

[11] Patricia Mazzei & Nicholas Bogel-Burroughs, The Gunman Will Be Sentenced to Life in Prison Without Parole, N.Y. Times (Oct. 14, 2022), https://www.nytimes.com/2022/10/13/us/parkland-trial-verdict-gunman.html?smid=url-share.

[12] Andone et al., supra note 3.

[13] Patricia Mazzei & Audra D. S. Burch, Juror Describes Last-Ditch Bid to Deliver Death Sentence in Parkland Trial, NY Times (Oct. 15, 2022), https://www.nytimes.com/2022/10/15/us/parkland-trial-juror-death-sentence.html.

[14] Patricia Mazzei & Nicholas Bogel-Burroughs, ‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision., N.Y. Times (Oct. 13, 2022, 2:02 PM), https://www.nytimes.com/2022/10/13/us/parkland-families-death-penalty.html?smid=url-share.

[15] Id.

[16] Id.

[17] David Ovalle & Mary Ellen Klas, What’s Next for the Death Penalty – in Florida? – Legal Experts Predict That the Parkland Verdict for a Life Sentence Will Make It Harder to Secure Death-Penalty Convictions in Florida., Mia. Herald (Oct 14. 2022), https://www.miamiherald.com/news/local/crime/article267258577.html.

[18] Terry Spencer, Parkland School Shooter Spared from Execution for Killing 17, AP News (Oct. 13, 2022), https://apnews.com/article/parkland-shooter-jury-recommendation-live-updates-15c5121be1b8b7a73b85607d602e6ba2.

[19] Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx.

[20] Furman v. Georgia, 408 U.S. 238 (1972).  The moratorium ended four years later with Gregg v. Georgia, 428 U.S. 153 (1976).

[21] Ovalle & Klas, supra note 17.

[22] Id.

[23] Gary Fineout, Parkland Verdict May Reopen Florida Death Penalty Law, POLITICO (Oct. 14, 2022, 7:05 AM), https://www.politico.com/newsletters/florida-playbook/2022/10/14/parkland-verdict-may-reopen-florida-death-penalty-law-00061815.

[24] Hurst v. Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/hurst-v-florida.

[25] Hurst v. Florida, 577 U.S. 92 (2016).

[26] Id. at 99–100 (quoting Fla. Stat. § 775.082(1) (emphasis added)).

[27] Id. at 100 (quoting Fla. Stat. § 921.141(3)).

[28] Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983).  See James C. McKinley Jr., Why Does Florida Require a Unanimous Jury Decision to Impose a Death Sentence?, N.Y. Times (Oct. 13, 2022), https://www.nytimes.com/2022/10/13/us/florida-death-penalty-jury.html.

[29] Hurst v. Florida, supra note 24.

[30] McKinley, supra note 28.

[31] Id.

[32] Hurst v. Florida, supra note 24.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] McKinley, supra note 28.

[39] Anthony Izaguirre, DeSantis Defeats Crist, Wins 2nd Term as Florida governor, AP News (Nov. 8, 2022), https://apnews.com/article/florida-governor-race-2022-midterm-elections-4b2fe3a05668ed67119511838339110e.

[40] Fineout, supra note 23.

[41] Demie Johnson, Gov. DeSantis Calls on Changes to Death Penalty Law after Parkland Shooter Sentencing Hearing, WFTV (Oct. 16, 2022, 10:29 PM), https://www.wftv.com/news/local/gov-desantis-calls-changes-death-penalty-law-after-parkland-shooter-sentencing-hearing/57NEAEVPVFHNRIHQWBHTAWFHFY/.

[42] Id.

[43] Florida, supra note 2; Innocence Database – Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence-database?state=Florida.

[44] Bruce Ritchie, DeSantis Says Parkland Shooter Deserves the Death Penalty, POLITICO (Oct. 13, 2022, 2:02 PM), https://www.politico.com/news/2022/10/13/parkland-school-shooter-to-get-life-sentence-for-killing-17-00061661.

[45] Greg Allen, Florida Is Poised to Change the Way It Imposes the Death Sentence in Trials, Morning Edition, NPR (Nov. 1, 2022, 5:02 AM), https://www.npr.org/2022/11/01/1133041129/florida-is-poised-to-change-the-way-it-imposes-the-death-sentence-in-trials.

[46] Id.

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1May

Choosing to Go Out with a Bang: Examining Executions by Firing Squad

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By Grace Koppenheffer

As morbid as it is, most of us have probably thought about the way we would want to die, and the ways we definitely would not.  We instinctively recoil against those deaths that seem the most painful, the most inhumane.

Richard Bernard Moore, a death row inmate in South Carolina, was the first South Carolina prisoner to decide the method of his execution.[1]  In 2021, after South Carolina had had problems for years securing lethal injection drugs, the state passed a law that “made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option for condemned inmates.”[2]  Moore’s options were either death via electric chair or death via firing squad, and although he found both options unconstitutional, “he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice.”[3]  His death was scheduled for April 29, 2022, but the South Carolina Supreme Court issued a temporary stay on April 20, 2022.[4]

Moore’s death would have been the first time South Carolina killed an inmate via firing squad, and only the fourth firing squad execution in the country since 1976.[5]  Although four states (Mississippi, Oklahoma, South Carolina, and Utah) allow death by firing squad, the previous three all happened in Utah, with the most recent firing squad execution in 2010.[6]  In Utah, “[t]he prisoner is strapped into a chair, has a hood put over his or her face and a target placed on his or her chest above the heart.”[7]  In the event of stray bullets or ricochet, sandbags are placed around the chair.[8]  There are five sharpshooters, but one has a blank, so that each shooter can have “psychological deniability,” which may itself be imperfect because “they can tell the difference between live ammunition and a blank.”[9]  The South Carolina law provides, “[i]n the case of a firing squad execution, three volunteer prison workers will train their rifles on the condemned prisoner’s heart.”[10]

The Eighth Amendment guarantees that “cruel and unusual punishment [cannot be] inflicted.”[11]  The United States Supreme Court, however, has never struck down a method of carrying out the death penalty as unconstitutional.[12]  In the 1878 case Utah v. Wilkerson,[13] the Court explicitly stated that death by firing squad was constitutional: “[c]ruel and unusual punishments are forbidden by the Constitution, but . . . the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”[14]  The Court, however, acknowledged that “punishments of torture,” including being “embowelled alive, beheaded, and quartered,” all practices that were at one time legal but which even the Court in 1878 recognized as “atrocious,” would be unconstitutional.[15]  When Wilkerson was executed sixty days after the Court’s decision, he chose not to be blindfolded.[16]  “[W]hen the sheriff commanded, ‘Ready, aim,’ Wilkerson would draw up his shoulders, causing the target to move and the bullets to miss the target, causing him to jump forward, screaming, ‘Oh God!’”[17] It took him twenty-seven minutes to die, bleeding and withering on the ground.[18]

In Baze v. Rees,[19] followed by Glossip v. Gross[20] and Bucklew v. Precythe,[21] the Court created a two-pronged test for an inmate to challenge the constitutionality of the method of his death: “first, he must demonstrate that the method of execution is very likely to cause substantial harm or suffering, and second, he must present a feasible, readily implemented, less painful alternative that is prescribed by at least one state.”[22]

Scholars, politicians, and those sentenced to death have various opinions about execution by firing squad.  In 2014, Representative Paul Ray from Utah described execution by firing squad as “probably the most humane way to kill somebody.”[23]  Some scholars also argue that the firing squad is better than lethal injection as a means of execution because it is less likely to be botched and it is less painful.[24]  Additionally, “[i]nmates in Alabama, Ohio, Tennessee, and Texas have asked to be executed by firing squad, arguing that lethal injection is very likely to have a risk of serious harm,” providing some evidence that if forced to choose, people would rather die by firing squad.[25]  Even Moore chose death by firing squad over the electric chair when he had to choose between them.

On the other hand, some, like Moore’s lawyers, have argued that execution by firing squad is “barbaric.”[26]  Some scholars contend that death by firing squad is not any less painful or less likely to be botched because “[h]urling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.”[27]  Additionally, the inmates requesting execution by firing squad reside in states that do not allow that method to carry out the death penalty.[28]  In those states that do allow inmates to choose death by firing squad, they rarely do, and if they do elect such a method, they do so for reasons other than to reduce pain.[29]

Moreover, the Americans Civil Liberties Union of South Carolina has criticized South Carolina’s death penalty legislation as “modern-day lynching,” in part because only 27% of the state’s population is black but over half of those on death row are black.[30]  Executive director Frank Knaack stated, “[l]et’s not kid ourselves, this bill is about finding a new way to restart executions within a racist, arbitrary, and error-prone system.  We cannot divorce the method of execution from the system itself.”[31]

For those who oppose carrying out the death penalty by firing squad, the best route may be to go through legislatures rather than trying to have courts invalidate the method.  After all, “[s]hocking as they are, archaic methods of execution can affect how the public regards capital punishment,” and the legislature is designed to respond to public sentiment.[32]  If our modern sensibilities recoil from the thought of the firing squad being humane, not only will we as a society have to grapple with what methods are humane, but also we will need to grapple with whether the death penalty as a whole is humane.  As one judge put it, “[i]f we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”[33]

[1] Michelle Liu, South Carolina Inmate Picks Firing Squad over Electric Chair, AP News (Apr. 15, 2022), https://apnews.com/article/business-south-carolina-executions-5517b5184f8818bdd53e252af3b9cfc1.

[2] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, NPR (Apr. 20, 2022, 2:38 PM), https://www.npr.org/2022/04/20/1093812483/firing-squad-execution-blocked-south-carolina.

[3] Liu, supra note 1.

[4] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2.

[5] Id.

[6] Id.

[7] Laurel Wamsley, With Lethal Injections Harder To Come by, Some States Are Turning to Firing Squads, NPR (May 19, 2021, 5:00 AM)), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad.

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] U.S. Const. amend. VIII.

[12] Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/methods-of-execution (last visited Apr. 25, 2022).

[13] 99 U.S. 130 (1878).

[14] Id. at 134–35

[15] Id. at 135–36.

[16] Rob Warden & Daniel Lennard, Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13 Nw. J. L. & Soc. Pol’y 194, 214 (2018).

[17] Id.

[18] Id.

[19] 553 U.S. 35 (2008) (plurality opinion).

[20] 135 S. Ct. 2726 (2015).

[21] 139 S. Ct. 1112 (2019).

[22] Stephanie Moran, Note, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Mia. L. Rev. 276, 296 (2019).

[23] Mark Berman, The Recent History of States Contemplating Firing Squads and Other Execution Methods, Wash. Post (May 22, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/22/the-recent-history-of-states-contemplating-firing-squads-and-other-execution-methods/.

[24] See, e.g., Moran, supra note 22, at 299 (“[S]cientific research indicates that the initial pain felt by the victim may be comparable to being punched in the chest. There is some indication that the pain may also be hampered by an ‘adrenaline surge.’”) (quoting Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad, 50 Cleveland St. L. Rev. 335, 413 (2002)).

[25] Id. at 304.

[26] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2

[27] Michael Conklin, No, the Firing Squad Is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal, 44 Seattle U. L. Rev. 357, 369 (2021).

[28] Id. at 362

[29] Id.

[30] Wamsley, supra note 7.

[31] Id.

[32] Id.

[33] Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting), vacated by Ryan v. Wood, 573 U.S. 976 (2014).

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25Feb

Dunn v. Smith: Religious Liberties Do Not Cease at the Death Chamber Door

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By Sutton Travis 

In a decision that expanded religious liberties for prisoners on the verge of execution, the Supreme Court held in the late evening hours of Feb. 11 that Alabama prisoner Willie Smith could not be executed unless Alabama permitted Smith’s chaplain to accompany him into the execution chamber.[1]

Smith filed a complaint in the Middle District of Alabama on Dec. 14, 2020, alleging that the Alabama Department of Corrections’ policy of restricting all except the prison’s execution team from the execution chamber violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000[2] (“RLUIPA”).[3]  Smith sought an injunction against his execution scheduled for Feb.11, 2021, claiming that the policy violated RLUIPA by excluding his Christian minister from the execution chamber.[4]  Smith’s complaint explained that it was “integral to [his] faith” that his pastor “be physically present with him at the time of his execution.”[5]  The district court denied Smith’s request for an injunction,[6] relying on Alabama’s argument that allowing a chaplain into the execution chamber would undermine security measures.[7]  However, the Eleventh Circuit reversed and granted the injunction,[8] which the Supreme Court declined to vacate in Dunn v. Smith.[9]  

In her concurring opinion that elaborated on the Court’s one-sentence decision to uphold the injunction, Justice Kagan declared that “[t]he law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death.”[10]  Alleged violations of RLUIPA are analyzed under an “exceptionally demanding” strict scrutiny standard,[11] which mandates that a prison must employ “the least restrictive means of furthering [its] compelling governmental interest.”[12]  Although Kagan acknowledged that Alabama does have a “compelling state interest” in maintaining “prison security,”[13] Alabama’s policy failed to implement the least restrictive means available because “a prison may ensure security without barring all clergy members from the execution chamber.”[14]  Kagan admonished that she could find no example where “the presence of a clergy member . . . disturbed an execution.”[15]  As she recommended, the prison could perform background checks and interview the minister to ensure that the minister is fit to attend the execution.[16] 

Prior Case Law Development on Execution Litigation

Smith is the latest installment in a recent line of cases evaluating prisoners’ religious liberties in the context of executions.  In Dunn v. Ray,[17] the Supreme Court vacated the Eleventh Circuit’s stay of execution for Domineque Ray in an unsigned order on Feb. 7, 2019.[18]  Ray, a practicing Muslim and Alabama prisoner, had petitioned for a stay of execution because the prison refused to allow his imam to enter the execution chamber, even though Christian ministers were permitted in the chamber.[19]  The Court’s unsigned order did not elaborate on its decision to vacate the stay of execution, only citing Gomez v. United States District Court for the Northern District of California[20] for the proposition that a reviewing court can take into account the “last-minute nature of an application to stay execution.”[21]  Kagan vehemently dissented, stating that the Court’s decision was “profoundly wrong.”[22]  According to Kagan, the Court’s decision failed to recognize Ray’s “powerful claim that his religious rights will be violated.”[23]  Kagan further argued that Ray’s request was timely, as he filed his complaint only five days after Alabama denied his request to have his imam accompany him into the execution chamber.[24] 

Another execution-related religious liberty case came just a month later in Murphy v. Collier.[25] The Supreme Court blocked Patrick Murphy’s execution in March 2019 because Texas’s policy did not permit a Buddhist spiritual advisor to accompany Murphy into the execution chamber.[26]  At the time, Texas only allowed Christian or Muslim ministers to enter the execution chamber.[27]  In a brief paragraph, the Supreme Court explained that Murphy’s execution could not proceed until Texas permitted a Buddhist spiritual advisor to “accompany Murphy in the execution chamber.”[28]  Justice Kavanaugh, who concurred in the decision to grant the stay of execution, attempted to distinguish Murphy from the Court’s decision in Ray, emphasizing that Murphy submitted his request for a Buddhist minister an entire month before the date of his scheduled execution.[29]  Despite Kavanaugh’s explanation, the “disparate outcomes” of Ray and Murphy have been characterized as arbitrary.[30]

Five days after the Supreme Court granted the stay of execution in Murphy, Texas revised its policy to bar all religious ministers from the execution chamber.[31]  Although Kavanaugh wrote a concurring opinion in the Murphy case, he also released an additional statement, opining that Texas’s revised policy “solve[d] the equal-treatment constitutional issue” and “likely passe[d] muster under [RLUIPA].”[32]  In essence, Kavanaugh advised death penalty states to remedy religious discrimination concerns by simply barring all religious ministers from the execution chamber.[33]  Relying on Kavanaugh’s statement, Alabama amended its policy in April 2019 and joined Texas in excluding all religious officials from its execution chamber.[34]  

Shortly after Texas’s policy revision, prisoner Ruben Gutierrez challenged the new policy, arguing that it violated his religious liberties under RLUIPA by prohibiting his chaplain from accompanying him in the execution chamber.[35]  However, the Supreme Court did not weigh in on the merits of Gutierrez v. Saenz.[36]  Instead, the Court merely issued a one-paragraph remand, instructing the district court to consider “the merits” of Gutierrez’s claims based on the district court’s earlier findings that allowing a spiritual advisor into the execution chamber would not result in serious security problems.[37]  Thus, Smith was the first case where the Supreme Court’s decision actually indicated that barring religious ministers from the execution chamber could violate RLUIPA.  

Concerns About the Supreme Court’s Surreptitious Shadow Docket

Smith also marks one of the most recent decisions from the Supreme Court’s “shadow docket,” a term used to refer to emergency orders that are granted separately from the Court’s “normal merits docket.”[38]  Shadow docket decisions are viewed with some skepticism because they are decided without oral argument and are typically short, supported by minimal legal reasoning or explanations, and can be unsigned by individual justices.[39]  The shadow docket has recently received national attention because of the Trump administration’s high volume of requests for emergency relief in the form of shadow docket decisions,[40] as well as the heightened divisiveness on display in recent shadow docket rulings.[41]  In fact, these concerns led the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet to hold a hearing Feb. 18 to discuss the shadow docket.[42]  In his testimony before the subcommittee, University of Texas law professor Stephen Vladeck referenced the uncertainty about whether Justice Alito or Justice Gorsuch (or both) joined Kagan’s opinion in Smith to provide the fifth (or sixth) vote to block Smith’s execution.[43]  According to Vladeck, this anonymity in shadow docket decisions can “complicate[] efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”[44]  

In his own testimony, Amir H. Ali, Deputy Director of the Supreme Court and Appellate Program of the MacArthur Justice Center, criticized the “arbitrariness” and “disparate outcomes” of the Supreme Court’s recent shadow docket execution decisions.[45]  In order to combat the trend of unexplained, arbitrary decisions, Ali advised Congress to codify a standard of review for the Supreme Court to implement when reviewing shadow docket cases[46] and to also require the Court to supply reasonings for these decisions.[47] 

The Potential Impact of Smith

Despite the uncertainty surrounding shadow docket decisions, the Supreme Court’s stance in Smith will likely affect several of the other twenty-seven states that continue to recognize the death penalty.[48]  As Kavanaugh noted in his statement following Murphy,[49] Texas has explicitly barred religious ministers from the execution chamber since April 2019.[50]  Additionally, Idaho’s current execution protocol implies that religious ministers may not enter the execution chamber with the prisoner, as “a spiritual advisor of the offender’s choosing” is expected to witness the execution from the “condemned offender’s witness area.”[51] Similarly, North Carolina’s execution protocol also indicates that religious ministers cannot accompany the prisoner into the execution chamber, stating that religious ministers “will be seated in the first row of chairs” during the execution.[52] 

As of Feb. 24, none of these states appear to have publicly acknowledged Smith or addressed how it will impact their current policies.  Nevertheless, policy adjustments will likely be necessary to avoid an onslaught of litigation and, more importantly, to respect prisoners’ religious liberties.  As Ali testified to the House subcommittee, “[w]hen it comes to the death penalty, the importance of getting things right is at its zenith: there is no do-over.”[53]

[1] Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021); see also Amy Howe, Court Won’t Allow Alabama Execution Without a Pastor, SCOTUSblog (Feb. 12, 2021, 2:35 AM), https://www.scotusblog.com/2021/02/court-wont-allow-alabama-execution-without-a-pastor/ (explaining that the Court released its decision “around midnight eastern time”).

[2] 42 U.S.C. § 2000cc­­–1.

[3] Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *1 (M.D. Ala. Feb. 2, 2021), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Smith, 2021 WL 517473, at *1.

[4] Id.

[5] Id. at *6.

[6] Id. at *22.

[7] See id. at *9–10.

[8] Smith, 2021 WL 490283, at *1, aff’d Smith, 2021 WL 517473, at *1.

[9] 2021 WL 517473, at *1.

[10] Id. at *2 (Kagan, J., concurring).

[11] Id. at *1 (quoting Holt v. Hobbs, 574 U.S. 352, 364 (2015)).

[12] 42 U.S.C. § 2000cc–1(a)(2).

[13] Smith, 2021 WL 517473, at *1 (Kagan, J., concurring).

[14] Id.

[15] Id.

[16] Id. at *2.

[17] 139 S. Ct. 661 (2019) (mem.).

[18] Id. at 661.

[19] See id. at 661–62 (Kagan, J., dissenting).

[20] 503 U.S. 653, 654 (1992).

[21] Ray, 139 S. Ct. at 661 (quoting Gomez, 503 U.S. at 654).

[22] Id. at 661 (Kagan, J., dissenting).

[23] Id. at 662.

[24] Id.

[25] 139 S. Ct. 1475 (2019) (mem.).

[26] See id. at 1475.

[27] Id. (Kavanaugh, J., concurring) (“[T]he relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.”).

[28] Id. (majority opinion).  

[29] Id. at 1477 (Kavanaugh, J., supplementary statement).

[30] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4 (2021) (statement of Amir H. Ali, Deputy Director, Supreme Court & Appellate Program of the MacArthur Justice Center) [hereinafter Ali Hearing Statement] (“The disparate outcomes of these cases demonstrate the arbitrariness of present Shadow Docket practice in terms of who dies without this basic dignity.”).

[31] Murphy, 139 S. Ct. at 1476 (Kavanaugh, J., supplementary statement) (“Texas now allows all religious ministers only in the viewing room and not in the execution room.”).

[32] Id.

[33] See Howe, supra note 1 (describing Kavanaugh’s supplementary statement in Murphy as “suggesting” the “solution” of excluding all religious ministers from the execution chamber).

[34] See Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *2 (M.D. Ala. Feb. 2, 2021) (explaining that following “litigation in both Alabama in Texas,” Alabama revised its execution policy in April 2019 to restrict all religious ministers from the execution chamber), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).

[35] See Juan A. Lozano, U.S. Supreme Court Halts Texas Execution Over Clergy Question, AP News (June 16, 2020), https://apnews.com/article/4e9159f5a14395d6aaad24a7d545e738.

[36] No. 19-8695, 2021 WL 231538, at *1 (U.S. Jan. 25, 2021) (mem.).

[37] Id. at *1.  An earlier grant from the Supreme Court to issue a stay for the execution (while Gutierrez’s petition for certiorari was still pending) had instructed the District Court to evaluate “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”  Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (mem.); see also Smith, 2021 WL 358374, at *3 (noting that the district court in Gutierrez had found that “no serious security problems would result” from the presence of spiritual advisors in the execution chamber (citing Gutierrez v. Saenz, No. 19-cv-185 (S.D. Tex. 2019), Doc. 124, p.2))).

[38] Debra Cassens Weiss, House Panel Considers Reforms to Deal with Supreme Court’s Shadow Docket, ABA J. (Feb. 19, 2021, 9:38 AM), https://www.abajournal.com/news/article/house-panel-considers-reforms-to-deal-with-supreme-courts-shadow-docket-more-transparent.

[39] See id.; see also Hon. Trevor McFadden & Vetan Kapoor, Symposium: The Precedential Effects of Shadow Docket Stays, SCOTUSblog (Oct. 28, 2020, 9:18 AM), https://www.scotusblog.com/2020/10/symposium-the-precedential-effects-of-shadow-docket-stays/; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM), https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html.

[40] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4–5 (2021) (statement of Stephen Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law) [hereinafter Vladeck Hearing Statement] (explaining that over four years, the Trump administration filed forty-one applications with the Supreme Court for emergency relief, which was “more than twenty times” the number of applications prior administrations submitted between January 2001 and January 2017).  The Supreme Court granted twenty-four of these applications “in full and four in part.” Id. at 5.

[41] Id. at 5 (“[D]uring the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”).

[42] The Supreme Court’ Shadow Docket, House Comm. on Judiciary, https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4371 (last visited Feb. 24, 2021).  This link contains a recording of the virtual hearing.

[43] Vladeck Hearing Statement, supra note 40, at 6.  Justices Breyer, Sotomayor, and Barrett joined Justice Kagan’s opinion in Smith, Justice Kavanaugh’s dissent was joined by Chief Justice Roberts, and the opening sentences of the decision note that Justice Thomas would have vacated the injunction.  Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).  The decisions of Justices Gorsuch and Alito remain unknown, leading to speculation about which of the two joined the majority decision.  See, e.g., Jonathan H. Adler, SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote), Reason: Volokh Conspiracy (Feb. 18, 2021, 1:46 PM), https://reason.com/volokh/2021/02/13/scotus-refuses-to-let-alabama-execute-willie-smith-without-his-pastor-present-without-noting-who-cast-the-fifth-vote/ (“If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court’s injunction in place.”).

[44] Vladeck Hearing Statement, supra note 40, at 6. 

[45] Ali Hearing Statement, supra note 30, at 4. 

[46] See id. at 5.  In particular, Ali recommended adopting the standard currently used for overturning certain state court decisions concerning prisoners, which requires that the Supreme Court should disturb “a lower court’s request for additional time to consider the lawfulness of an execution” only when “it is apparent to the Supreme Court that the lower court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or rested on ‘an unreasonable determination of the facts in light of the evidence presented.’”  Id. at 6 (quoting 28 U.S.C. § 2254(d)).

[47] See id. at 6.

[48] State by State, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited Feb. 18, 2021) (listing twenty-eight states that still recognize the death penalty).  However, three of these states (California, Oregon, and Pennsylvania) currently have a governor-imposed moratorium on executions.  Id.  An additional nine death penalty states have not carried out executions in at least ten years.  Executions Overview: States with No Recent Executions, Death Penalty Info. Ctr. (July 14, 2020), https://deathpenaltyinfo.org/executions/executions-overview/states-with-no-recent-executions. Virginia also appears to be on the brink of abolishing its death penalty. See Dean Mirshahi, With Northam’s Signature, Virginia Will Become First Southern State to Abolish the Death Penalty, ABC News (Feb. 23, 2021 12:48 PM), https://www.wric.com/news/politics/capitol-connection/with-northams-signature-virginia-will-become-first-southern-state-to-abolish-the-death-penalty/ (noting that both the Virginia House and Senate have approved a bill abolishing the death penalty, and Governor Northam “seems poised to sign the legislation”).

[49] See Murphy v. Collier, 139 S. Ct. 1475, 1476 (2019) (Kavanaugh, J., supplementary statement).

[50] See Execution Procedure, Tex. Dep’t Crim. Just. Corr. Insts. Div. 8 (Apr. 2, 2019), https://files.deathpenaltyinfo.org/legacy/files/pdf/TX%20Execution%20Procedure%2004.02.2019.pdf (“[Texas Department of Criminal Justice] Chaplains and Ministers/Spiritual Advisors designated by the offender may observe the execution only from the witness room.”).

[51] Execution Procedures, Idaho Dep’t Corr. 16 (Jan. 6, 2012), https://files.deathpenaltyinfo.org/legacy/files/pdf/ExecutionProtocols/IdahoProtocol01.06.2012.pdf.

[52] Execution Procedure Manual for Single Drug Protocol (Pentobarbital), N.C. Dep’t Pub. Safety 7 (Oct. 24, 2013), https://www.ncdps.gov/document/execution-procedure-manual-single-drug-protocol-pentobarbital.  The protocols also provide that the religious minister should remain with the prisoner in the Preparation Room “until orders are given to move the condemned prisoner into the Death Chamber.”  Id. at 16.

[53] Ali Hearing Statement, supra note 30, at 5. 

Post Image by Nathan Dumalo on Unsplash.

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30Nov

Weekly Roundup – 11/26-11/30

Categories: 4th Cir. Blog Civil Cases Criminal Cases Weekly Roundup
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By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.

 

Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.

 

US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.

 

US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

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8Mar

Fourth Circuit Affirms Denial of Rule 60(b) Motion in Death Penalty Case

Categories: 4th Cir. Blog Civil Cases
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By Kayleigh Butterfield

On March 8, 2016, the Fourth Circuit issued its published opinion in the civil case Moses v. Joyner. Moses, a prisoner facing the death penalty, filed a motion under Federal Rule of Civil Procedure 60(b) for relief from the district court’s dismissal of his federal habeas petition. The Fourth Circuit affirmed the district court’s denial of the motion.

Clean Crime and Messy Procedure

In 1997, a jury convicted Moses of two counts of first-degree murder. Both murders were shootings that were closely tied to illegal drug operations. At sentencing, the court imposed the death penalty. The state supreme court affirmed Moses’ conviction, and his petition to the United States Supreme Court was denied.

Over the next seven years, Moses filed a total of three Motions for Appropriate Relief and a federal habeas petition under 28 U.S.C. § 2254. All three motions and the habeas petition were denied. In 2011, Moses filed his first motion under Rule 60(b) for the relief from the district court’s dismissal of his federal habeas petition. Treating this as a successive habeas petition, the district court transferred the issue to the Fourth Circuit, which then denied authorization for the successive litigation.

In August of 2014, Moses filed a second motion under Rule 60(b), claiming that the intervening case law in Martinez v. Ryan and Trevino v. Thaler changed the procedural rules barring a federal habeas petition. Both cases essentially stand for the premise that a procedural default under state law will not always bar federal habeas cases from being heard.  The district court held that this new motion was untimely under Rule 60(c), and that the change of law in Martinez and Trevino was not enough to trigger relief under Rule 60(b).

Untimely and Insufficient

The Fourth Circuit first examined whether the district court had abused its discretion by holding Moses’ motion untimely under Rule 60(c). The Fourth Circuit did not find an abuse of discretion, primarily because Moses waited nearly two-and-a-half years after Martinez and fifteen months after Trevino before filing the present motion.

Next, the Fourth Circuit analyzed whether Moses actually met the standards required by Rule 60(b). The Fourth Circuit explained that while the last clause of 60(b) does act as a sort of broad catch-all for relief, the Supreme Court has narrowed that language so that it only applies if one can show “extraordinary circumstances.” Determining that Martinez and Trevino only constituted a procedural inconsistency with prior habeas law, the Fourth Circuit held that such distinctions did not create extraordinary circumstances broad enough to warrant sufficient grounds for Moses’ 60(b) motion.

Affirmed

For the aforementioned reasons, the Fourth Circuit affirmed the district court’s dismissal of Moses’ motion under Rule 60(b).

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1Mar

In Death Penalty Case, Fourth Circuit Affirms Denial of Defendant’s Petition for a Writ of Habeas Corpus

Categories: 4th Cir. Blog Criminal Cases
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Prisoner and guard

By George Kennedy

On November 25, 2015, the Fourth Circuit issued its published opinion in the criminal case of Gray v. Zook. The Fourth Circuit affirmed the order of the district court, which denied Defendant’s petition for a writ of habeas corpus.

Defendant’s Crimes and Death Sentence

Defendant Ricky Jovan Gray confessed to murdering Bryan and Kathryn Harvey and their two young daughters in the course of a home burglary. For these crimes, Defendant was tried in Virginia state court. At trial, the state presented evidence that Defendant had also murdered his wife as well as several others close in time to the murders of the Harveys. As a defense, Defendant offered evidence of his traumatic childhood experiences, including repeated sexual abuse, as well as his consistent drug use. Defendant attempted to show that there was a connection between his childhood trauma and drug use and his violent behavior.

The jury issued verdicts of life imprisonment on three murder counts, and verdicts of death for the murders of the Harvey daughters. On direct appeal, the Supreme Court of Virginia affirmed the convictions and death sentences.

Petitions for Habeas Relief

Following his conviction, Defendant sought state habeas relief in the Supreme Court of Virginia. Defendant argued that he had received inadequate legal representation. Specifically, Defendant claimed that his attorneys had failed to investigate the circumstances surrounding his confession and that his attorneys had not sufficiently represented Defendant’s defense that his use of PCP during the murders had clouded his memory. The Supreme Court of Virginia dismissed Gray’s habeas petition with the exception of one claim, not relevant to Defendant’s federal claims.

Defendant then filed a federal habeas petition in federal district court, alleging that the Supreme Court of Virginia’s dismissal of his habeas petition was based on an unreasonable determination of the facts under the Anti Terrorism and Effective Death Penalty Act (“AEDPA”) § 2254(d)(2). The essence of this claim was that the Supreme Court of Virginia failed to adequately consider all of the evidence presented at trial. The district court also denied Defendant’s habeas petition in full. In addition, the district court certified two questions to the Fourth Circuit. The second question was whether the recent U.S. Supreme Court decision of Martinez v. Ryan mandated the appointment of independent counsel to investigate possible Martinez claims present in Defendant’s case. To this question, the Fourth Circuit answered in the affirmative. Accordingly, Defendant was appointed new counsel, and was allowed to present a new claim for habeas relief. Defendant’s claim was that his counsel failed to present evidence of his voluntary intoxication at the time of the crimes. Yet again, the district court rejected Defendant’s claim for relief. The first certified question was resolved by the Fourth Circuit in this appeal.

Issues on Appeal

The first issue on appeal at the Fourth Circuit was whether the Supreme Court of Virginia’s dismissal of Defendant’s habeas petition that he failed to receive effective legal counsel was “based on an unreasonable determination of the facts under AEDPA § 2254(d)(2).” The AEDPA allows a federal district court to review claims decided on the merits by state courts in death penalty cases when the state court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Defendant’s argument was that the Supreme Court of Virginia erred by failing to resolve disputed issues of fact without an evidentiary hearing, and that its determinations of factual disputes were unreasonable. The Fourth Circuit disagreed, and held that the Supreme Court of Virginia was not required to hold an evidentiary hearing and held that its determination of the facts was not objectively unreasonable.

As the Fourth Circuit explained, the AEDPA does not require a state court to conduct an evidentiary hearing for all factual disputes. Here, the Fourth Circuit held that an evidentiary hearing was not required. The factual dispute at issue was whether Defendant had received adequate representation. The Fourth Circuit found ample support in the record that the Supreme Court of Virginia had considered this dispute sufficiently, and that there was no reason why further inquiry in the form of an evidentiary hearing was required. Furthermore, the Fourth Circuit held that the Supreme Court of Virginia’s determination of the facts was not objectively unreasonable under the AEDPA. The Fourth Circuit disagreed with Defendant on all points. As the Fourth Circuit held, Defendant’s arguments did not call into question any of the Supreme Court of Virginia’s factual findings since they were based on Defendant’s own “conclusory allegations” contradicted by evidence on the record.

The second issue on appeal was whether Defendant may belatedly raise an ineffective assistance at trial claim under the rule recently announced in Martinez. On this issue, also, the Fourth Circuit disagreed with Defendant and affirmed the decision of the trial court. Martinez “permits a petitioner, under certain circumstances, to excuse a procedural defect and bring a claim in federal court that was not raised in state court.” Yet the Fourth Circuit held that Defendant’s ineffective assistance at trial claim was effectively raised in Virginia state court. Therefore, the Fourth Circuit held that Defendant was not entitled to bring his ineffective assistance at trial claim anew in federal court. Accordingly, the Fourth Circuit found no basis to reverse the district court nor revisit the decision of the Supreme Court of Virginia.

Affirmed

The Fourth Circuit affirmed the district court’s dismissal of Defendant’s habeas petition.

Dissent

Judge Davis wrote a separate opinion in which he concurred in part and dissented in part. Judge Davis agreed that Defendant’s Martinez claim relating to ineffective representation at trial was without merit. However, Judge Davis disagreed with the majority as to the AEDPA claim, arguing instead that the Supreme Court of Virginia made an unreasonable determination of the facts.

 

 

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1Oct

Fourth Circuit Rejects Death Row Inmate’s Claim of Intellectual Disability; Affirms Sentence

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By Daniel Stratton

On June 30, 2015, the Fourth Circuit issued a published opinion in the criminal case Prieto v. Zook. The appellant, Alfredo Rolando Prieto appealed the district court’s denial of his writ of habeas corpus under 28 U.S.C. § 2254. Prieto argued that his two death sentences were unconstitutional under the Eight Amendment’s prohibition on the execution of intellectually disabled individuals, in light of the U.S. Supreme Court’s opinions in Atkins v. Virginia , and Hall v. Florida. The Fourth Circuit, after reviewing the impact of Atkins and Hall, affirmed the district court’s denial, holding that Prieto failed to prove the “fundamental miscarriage of justice” exception necessary to overcome his procedural default.

Prieto’s Conviction and Sentencing

In 2007, Prieto was convicted of two counts of capital murder, two counts of use of a firearm in committing murder, grand larceny, and rape, stemming from a 1988 crime, which he was linked to in 2005 through DNA testing. Juror misconduct ultimately caused a mistrial, and Prieto was again convicted on the same counts in 2008. During his sentencing, Prieto argued that he was ineligible for the death penalty due to an intellectual disability. Despite substantial evidence to support his claim, the jury imposed the death penalty on Prieto.

The Virginia Supreme Court, upon hearing his appeal, affirmed Prieto’s conviction but vacated his death sentence due to problems with the jury verdict forms during the sentencing phase of the trial. The sentencing was remanded to a new jury, and in 2010, he was again sentenced to the death penalty. The trial court again imposed the death penalty and Prieto again appealed. The Virginia Supreme Court affirmed.

Prieto filed a habeas petition with the Virginia Supreme Court, arguing that his counsel was constitutionally ineffective and that his execution was barred by the precedent of Atkins. The Virginia Supreme Court denied the petition, holding that because Prieto had failed to raise his Atkins claim on his 2010 direct appeal, he was now procedurally barred from raising it in his state habeas petition.

Prieto then filed his habeas application in federal court, again asserting a claim under Atkins. The district court dismissed that claim, among others. The Fourth Circuit granted a certificate of appealability as to the Atkins claim.

Atkins, Hall, and the Evolving Standards of Decency

In Atkins, a 2002 case, the Supreme Court held that punishing individuals with an intellectual disability is prohibited under the Eighth Amendment in light of “evolving standards of decency.” In order to determine which offenders fell into the category of intellectually disabled, Virginia enacted a statute which its state Supreme Court interpreted as requiring an IQ score of 70 or below. Thus a defendant with an IQ of 71 could theoretically be sentenced to death, while the Eighth Amendment would protect a defendant with an IQ of 70.

In 2014, the Supreme Court clarified this prohibition, holding in Hall that a mechanical rule with rigid cutoffs for IQ scores to determine intellectual disability is unconstitutional, and that no single factor is dispositive in making a determination. The Supreme Court instead established that states should focus on (1) significantly below average intellectual functioning and (2) inability to engage in adaptive functioning (i.e. learning basic skills).

In light of this decision, Virginia’s interpretation of its statute, which imposed a rigid cutoff at an IQ score of 70 or below was clearly unconstitutional. However, because Prieto had procedurally defaulted on his claim, the constitutionality of the cutoff system was not enough to resolve his Atkins claim.

Virginia and Prieto’s Procedural Default

Under Virginia state law, a claim procedurally defaults when “a non-jurisdictional issue could have been raised during the direct appeal process” but was not. Afterwards, it cannot be used in a petition for a writ of habeas corpus. A habeas petitioner can, however, overcome the procedural default if she can establish either “cause and prejudice” for the default or that it would result in “a fundamental miscarriage of justice.” One way to establish cause is by demonstrating constitutionally ineffective assistance of counsel. To establish a fundamental miscarriage of justice, according to the Supreme Court, a defendant must show that a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” This can also be applied in a death penalty case, where a defendant can show “actual innocence,” meaning that she can prove through “clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found” the defendant eligible for the death penalty.

Prieto argued at the district court level that he had constitutionally ineffective assistance in his 2010 sentencing and appeal, which resulted in his intellectual disability not being raised. The district court found this claim to be meritless, and on this appeal, Prieto did not challenge that finding. For that reason, Pietro was only able to argue that his Atkins claim could survive procedural default because of a fundamental miscarriage of justice. To prove this, Prieto did not argue that he was actually innocent, instead opting to argue that he is “innocent of death.”

The Fourth Circuit, following the Supreme Court, declined to decide if Hall applied retroactively, instead choosing to assume without deciding that it did. The Fourth Circuit then reviewed the district court’s decision de novo. Prieto argued that the evidence he offered during the 2008 sentencing hearing proved his actual innocence claim. Despite the substantial volume of evidence produce by Prieto, which included multiple expert witnesses, numerous interviews with relatives, and “a comprehensive evaluation of his neuropsychological functioning,” the state offered strong evidence to counter his claim. The State’s evidence included testimony from three prison psychologists, evidence that Prieto had written his own list of prison grievances, and had filed a pro se legal challenge relating to his confinement. Because Prieto did not argue that if he were re-sentenced he would introduce additional evidence, the Fourth Circuit ultimately concluded that a jury at a new sentencing would view largely the same evidence as before.

Prieto finally attempted to draw comparisons in his case to the Supreme Court’s Hall case. The Fourth Circuit found this unpersuasive, in part because the Supreme Court did not rule on Hall’s intellectual disability; it simply remanded the case back so Hall could attempt to prove such disability.

The Fourth Circuit Affirms Prieto’s Sentence

Ultimately, the Fourth Circuit, when looking at the entirety of the record, held that it could not conclude that “no reasonable jury would find Prieto eligible for the death penalty.” Because of the high burden required of establishing a “fundamental miscarriage of justice” exception, the Fourth Circuit concluded that Prieto failed to prove his Atkins claim and the judgment was affirmed.

 

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