Capital Punishment: Supreme Court Decisions of the 2005-2006 Term
CRS Report for Congress
Capital Punishment:
Supreme Court Decisions
of the 2005-2006 Term
August 23, 2006
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress
Capital Punishment: Supreme Court Decisions of the
2005-2006 Term
Summary
During the 2005-2006 Term, the Supreme Court gave favorable decisions to the
defendants in three out of the six death penalty cases it announced. In Hill v.
McDonough, the Court ruled unanimously that the method-of-lethal injection claims
can be brought under 42 U.S.C. § 1983 rather than under the habeas corpus statute
(28 U.S.C. §2254). In House v. Bell, a case involving a death row inmate who
claimed that DNA evidence proved he did not commit the crime for which he was
found guilty, the Court found in a 5 -3 ruling that the petitioner had satisfied the
“gateway” standard for habeas review, but left open the question of whether the
Constitution precludes execution of an “innocent” defendant found guilty and
sentenced following a constitutionally adequate trial. In Holmes v. South Carolina,
the Court unanimously held that a capital defendant cannot be denied the right to
introduce evidence of third party guilt. The other cases, in which the Court upheld
application of state death penalty statutes, appear to reveal a greater division among
the justices over the fairness of capital punishment. The 5-4 decision in Kansas v.
Marsh centered around a debate concerning capital punishment as much as it did a
ruling on the unusual statute in Kansas which provided that juries should sentence
a defendant to die – rather than serve life in prison – when the evidence for and
against imposing death is equal. In Brown v. Sanders, a second 5-4 decision, the
Court upheld the petitioner’s death sentence even though two of the sentencing
factors presented to the jury were declared invalid. In Oregon v. Guzek, the Court
held that states may reasonably refuse to allow convicted capital defendants to offer
alibi evidence for the first time at the sentencing phase of their trials; two Justices
would have permitted the exclusion of any evidence at sentencing that cast doubt
upon the jury’s guilty verdict, but the majority were obviously unwilling to go that
far.
Contents
In troduction ......................................................1
Hill v. McDonough.................................................1
House v. Bell.....................................................3
Holmes v. South Carolina ...........................................5
Kansas v. Marsh...................................................7
Oregon v. Guzek...................................................9
Brown v. Sanders.................................................11
Capital Punishment: Supreme Court
Decisions of the 2005-2006 Term
Introduction
The six capital punishment decisions which were decided during the 2005-2006
Term involved issues concerning: (1) a challenge to the lethal injection protocol asth
cruel and unusual punishment in violation of the 8 Amendment (Hill v.
McDonough), (2) constitutionality of a death penalty state statute that requires death
if plus and minus factors are in balance (Kansas v. Marsh), (3) whether petitioner’s
compelling new evidence, though at the very least a colorable claim of actual
innocence, was as a matter of law insufficient to excuse his failure to present that
evidence before the state courts (House v. Bell), (4) disagreement among the courts
regarding whether witness testimony was “mitigating evidence” (designed to spare
the 18 year old from lethal injection) or “alibi evidence”(that went directly to whether
the defendant was guilty) which should have been presented during the guilt or
innocence phase of the trial (Oregon v. Guzek), (5) whether State’s law governing
admissibility of third-party guilt evidence violates the capital defendant’s
constitutional right to present a complete defense premised on due process,
confrontation, and compulsory process clauses (Holmes v. South Carolina), and (6)
whether a new trial is warranted if two of several aggravating factors found by the
jury are later held to be invalid (Brown v. Sanders).
In three cases1 the Court kept alive the appeals of the death row inmates in
Florida, Tennessee, and South Carolina. In the other three cases2, the Court affirmed
the States’ death penalty sentences.
Hill v. McDonough3
On June 12, 2006, the Court, held unanimously, that the use of lethal injection
as a form of execution in the State of Florida constituted a challenge to the cruel and
unusual provision of the Eighth Amendment and properly raised a claim under 42
U.S.C. § 1983, which provides a cause of action for civil rights violations, rather than
under the habeas corpus provisions.
1 Hill v. McDonough, 126 S. Ct.2096 (2006); House v. Bell, 126 S.Ct. 2064 (2006); Holmes
v. South Carolina, 126 S. Ct.1727 (2006).
2 Oregon v. Guzek, 126 S. Ct. 1226 (2006); Kansas v. Marsh, 126 S. Ct. 2516 (2006); Brown
v. Sanders, 126 S. Ct. 884 (2006).
3 126 S. Ct. 2096 (2006).
The petitioner (Hill) challenged Florida’s injection protocol under 42 U.S.C. §
1983 as likely to cause him severe pain and suffering, but the lower courts construed
his suit as a habeas petition under 28 U.S.C.§2254 and dismissed it as a procedurally
barred second and successive petition.4 In an opinion written by Justice Kennedy, the
Court reversed noting the distinction between challenges to the lawfulness or
duration of confinement, which must be brought via a habeas corpus petition, and
challenges to the circumstances, which need not be.5 The difference is that the
former, but not the latter, necessarily challenges the legality of a sentence i.e., finding
that a state cannot detain or execute an inmate in one particular manner does not
mean that it cannot detain or execute him at all.6 The reasoning of the Court in Hill
was that although Florida law prescribed lethal injection as the means of execution,
it left the specific method of injection up to the correction officials, and Hill
challenged only the particular, three-drug sequence intended for his execution.7
Inasmuch as Hill left open the possibility that Florida could execute him by lethal
injection by another method, a decision in his favor under 42 U.S.C. § 1983 did not
imply that his sentence by lethal injection generally is unlawful.8
The Court was sensitive to the concerns raised by Florida, the United States
Solicitor General and others that death-row inmates will simply challenge individual
aspects of their planned executions one at a time and thereby effectively block their
executions.9 Notwithstanding, the Court rejected a proposal to require prisoners such
as Hill to identify in their complaints alternative means of execution that they would
accept.10 According to the Court, heightened pleading requirements should result
from changes to the Federal Rules of Criminal Procedure similar to the specific
pleading requirements which are mandated by the Federal Rules of Civil Procedure
and not, as a general rule, by case-by-case litigation.11 The Court also noted that
filing a section 1983 action does not entitle an inmate to a stay of execution, which
allows courts to consider factors such as whether a suit is speculative or filed too late
in the day.12 At least temporarily, the decision in Hill may delay executions as
challenges to the constitutionality to the state’s lethal injection method of execution
are addressed and decided.
4 Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006).
5 126 S. Ct. at 2101-2102.
6 Id. at 2102.
7 Id.
8 Id.
9 Id. at 2103.
10 Id.
11 Id.
12 Id. at 2104.
House v. Bell13
On June 12, 2006, the Court decided its second death penalty case in a 5-3
decision with Justice Kennedy joined by Justices Breyer, Stevens, Souter, and
Ginsburg for the majority (Justice Alito did not participate). This case raised an issue
which has hung over the imposition of capital punishment in recent years as it relates
to newly discovered evidence and the possibility that an innocent person could be
executed.
Paul House sought release from Tennessee’s death row based on what his appeal
to the Court calls “new reliable evidence” of innocence14 which involves an
application of the “miscarriage-of-justice” exception to the procedural default of state
claims in federal court under Schlup v. Delo.15 House claimed that DNA tests show
that the semen found on the murder victim, Carolyn Muncey’s clothes belonged to
her husband, Hubert Muncey, and not to House, as a jury in Union County, Tenn.,
found 20 years ago. The lower federal courts rejected his claims.16
The issue before the Supreme Court was first how strong his case for innocence
must be to qualify for habeas review in federal court.17 In addition, House asked the
Court to resolve an issue left open earlier and find the new evidence exonerated
him.18 Although the Court has not explicitly decided that it is unconstitutional to
execute a convicted but innocent person, it suggested the possibility in 1993 in
Herrera v. Collins.19 There in a 5-4 opinion, however, it ruled that Leonel Torres
Herrera had no right to reopen his case 10 years after his conviction, based solely on
his claim of new proof of innocence.20 Justices O’Connor and Kennedy joined that
opinion without endorsing the suggestion and with the stipulation that they believed
that there was little doubt of Herrera’s guilt.21
13 126 S. Ct. 2064 (2006).
14 Id. at 2077-2078.
15 513 U.S. 298 (1995) cited at 126 S. Ct. 2076-2077 (Justice Kennedy’s majority opinion
said that House’s case fits under the rule announced in the 1995 case Schlop v. Delo which
stated that innocence claims should reopen appeals if, in light of new evidence, “it is more
likely than not that no reasonable juror would have found the petitioner guilty”).
16 House v. Bell, 386 F.3d 668, 707-709 (6th Cir. 2004).
17 126 S.Ct. at 2087.
18 Id. at 2086-87.
19 506 U.S. 390, 417 (1993)(“We may assume, for the sake of argument in deciding this
case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after
trial would render the execution of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a claim. . . . .[T]he threshold
showing for such an assumed right would necessarily be extraordinarily high. The showing
made by petitioner in this case falls far short of any such threshold”).
20 Id. at 417-19.
21 Id. at 419, 427 (O’Connor and Kennedy, JJ. concurring).
The House Court referred to the standard of Schup v. Delo and held that it was
more likely than not that no reasonable juror viewing the record as a whole would
find House guilty beyond a reasonable doubt.22 Justice Kennedy, writing for the
majority, noted that “...‘all the evidence, old and new, incriminating and exculpatory,
without regard to whether it would necessarily be admitted under rules of
admissibility that would govern at trial’” must be taken into account.23 He stated that
when an inmate comes to federal court with evidence of innocence, “[t]he court’s
function is not to make an independent factual determination about what likely
occurred, but rather to assess the likely impact of the evidence on reasonable
jurors.”24
The majority decided that House’s revelation about DNA and the blood stains
were enough to overcome the strict standards that must be met before prisoners are
allowed to re-argue issues of innocence long after their convictions.25 They declined
to reach, however, the question left open in Herrera, whether the Constitution
precludes execution of an “actually innocent” defendant found guilty and sentenced
in a constitutionally adequate trial.26 Should such a right exist, House had failed
present evidence of sufficient persuasion to claim it.27
Chief Justice Roberts, in the dissent, said the majority had ignored the trial
judge’s determination that House and several of his witnesses were unreliable. The
Chief Justice also noted that the trial judge had found that Muncey’s autopsy blood
was spilled on House’s jeans after the FBI already had determined that the blood on
his pants belonged to the victim.28 Justice Roberts’ dissent agreed with the majority
on the Herrera issue, but argued that despite the evidence, “the case against House
remains substantially unaltered from the cases presented to the jury.”29 As a result,
Justice Roberts said, the Schlup standard was not met.30
The judgment upholding the denial of habeas corpus relief was reversed, and
the case was remanded for consideration of House’s procedurally barred claims.
22 126 S.Ct. at 2076-2077.
23 Id.
24 Id. at 2077.
25 Id. at 2087.
26 Id. at 2086-87.
27 Id. at 2087.
28 Id. at 2092-2094.
29 Id. at 2093.
30 Id. at 2087. (“The question is not whether House was prejudiced at his trial because the
jurors were not aware of the new evidence, but whether all the evidence, considered
together, proves that House was actually innocent, so that no reasonable juror would vote
to convict him.”)
Holmes v. South Carolina31
Holmes was convicted of multiple crimes, including first degree murder, and
sentenced to death. At his trial, the court did not allow Holmes to present evidence
that a third party had committed the crimes he had been charged with. On May 1,
2006, the Supreme Court, with Justice Alito writing the opinion for a unanimous
Court, ruled that South Carolina had deprived Bobbie Lee Holmes of a fair trial when
it prevented him from putting on evidence contradictory to the State’s case and which
also pointed to another possible suspect. The prosecution relied heavily on forensic
evidence that strongly supported petitioner’s guilt. The petitioner sought to rebut the
State’s forensic evidence by introducing expert testimony suggesting that the
evidence had been contaminated and that the police had engaged in a plot to frame
him. The petitioner also sought to introduce evidence that another man by the name
of Jimmy McCaw White had been in the victim’s neighborhood on the morning of
the assault and White had either acknowledged petitioner’s innocence or admitted
to committing the crimes himself. In White’s pretrial testimony, he denied making
the incriminating statements and provided an alibi for the time of the assault.32
The trial court excluded petitioner’s third-party guilt evidence citing the State
Supreme Court’s Gregory decision, which held that this evidence is admissible if it
raises a reasonable inference as to the defendant’s own innocence, but is inadmissible
if it merely casts a bare suspicion or raises a conjectural inference as to another’s
guilt.33 The State Supreme Court, affirming the trial court, cited both Gregory and34
its later decision in Gay, and held that where there is strong forensic evidence of an
appellant’s guilt, gratuitous evidence regarding a third party’s alleged guilt does not35
raise a reasonable inference as to the appellant’s own innocence. Applying this
standard, the South Carolina State Supreme Court held that the petitioner could not36
overcome the forensic evidence against him.
The U.S. Supreme Court granted certiorari based upon the question regarding
whether South Carolina’s rule governing the admissibility of third-party guilt
evidence violates a criminal defendant’s constitutional right to present a complete
defense grounded in the Due Process, Confrontation, and Compulsory Process37
Clauses.
The U.S. Supreme Court held that a criminal defendant’s federal constitutional
rights are violated by an evidence rule under which the defendant may not introduce
31 126 S. Ct. 1727 (2006).
32 Id. at 1730-731.
33 State v. Gregory, 198 S.C. 98, 104, 16 S.E.2d 532, 534 (1941).
34 State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001).
35 State v. Holmes, 361 S.C. 333, 342-43, 605 S.E.2d 19, 24 (2004).
36 Id.
37 Holmes v. South Carolina, 126 S.Ct.34 (2005).
evidence of third-party guilt if the prosecution has introduced forensic evidence that,
if believed, strongly supports a guilty verdict.38 The Court said:
[S]tate and federal rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials. This latitude, however,
has limits. Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. This right is abridged by evidence
rules that infringe] upon a weighty interest of the accused and are ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’
While the Constitution thus prohibits the exclusion of defense evidence under
rules that serve no legitimate purpose or that are disproportionate to the ends that
they are asserted to promote, well-established rules of evidence permit trial
judges to exclude evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or potential to mislead
the jury. An application of this principle is found in rules regulating the
admission of evidence proffered by criminal defendants to show that someone
else committed the crime with which they are charged. Such rules are widely
accepted and are not challenged here. In Gregory, the South Carolina Supreme
Court adopted and applied a rule intended to be of this type. In Gay and this
case, however, that court radically changed and extended the Gregory rule by
holding that, where there is strong evidence of a defendant’s guilt, especially
strong forensic evidence, proffered evidence about a third party’s alleged guilt
may (or perhaps must) be excluded. Under this rule, the trial judge does not
focus on the probative value or the potential adverse effects of admitting the
defense evidence of third-party guilt. Instead, the critical inquiry concerns the
strength of the prosecution’s case: If the prosecution’s case is strong enough, the
evidence of third-party guilt is excluded even if that evidence, if viewed
independently, would have great probative value and even if it would not pose
an undue risk of harassment, prejudice, or confusion of the issues. Furthermore,
as applied below, the rule seems to call for little, if any, examination of the
credibility of the prosecution’s witnesses or the reliability of its evidence.
[The point of this is that] by evaluating the strength of only one party’s evidence,
no logical conclusion can be reached regarding the strength of contrary evidence
offered by the other side to rebut or cast doubt. Because the rule applied below
did not heed this point, the rule is `arbitrary’ in the sense that it does not
rationally serve the end that the Gregory rule and other similar third-party guilt
rules were designed to further. Nor has the State identified any other legitimate
end served by the rule. Thus, the rule violates a criminal defendant’s right to39
have`a meaningful opportunity to present a complete defense.
Justice Alito was guided by a string of Supreme Court decisions which were
used as precedent to set up a balancing test to weigh and determine the opportunity
for the defendant to present a complete defense.40 In a situation where South
38 126 S.Ct. at 1728.
39 Id. at 1728-1729 (internal citations omitted).
40 I.e., United States v. Schaefer, 523 U.S. 303 (1998); Rock v. Arkansas, 483 U.S. 44
(1987); Crane v. Kentucky, 476 U.S. 683 (1986); Chambers v. Mississippi, 410 U.S. 284
Carolina’s rule was that if the State had put on strong forensic evidence of the
defendant’s guilt, the defendant could be prohibited from raising an alternative theory
of a third-party’s guilt. Under these circumstances, the Court concluded that Holmes
did not have a meaningful opportunity to present a complete defense. The Court
decided that this rule was arbitrary and irrational for the reason “... that by evaluating
the strength of only one party’s evidence, no logical conclusion can be reached
regarding the strength of contrary evidence offered by the other side to rebut or cast
doubt.”41
Kansas v. Marsh42
On June 26, 2006, the Supreme Court narrowly upheld the death penalty in
Kansas in a 5-4 decision which reversed the Kansas Supreme Court and ruled that the
Kansas’ death penalty statute does not violate the Eighth or Fourteenth Amendments
when it allows imposition of the penalty should the jury determine that the
aggravating and mitigating factors are of equal weight.
Marsh was convicted of capital murder, first-degree premeditated murder, and
aggravated arson and burglary stemming from the deaths of Mary Anne Pasch and
her 19-month-old daughter. The jury sentenced Marsh to death after finding the
existence of three aggravating circumstances that were not outweighed by the
mitigating circumstances. Marsh appealed his conviction, arguing that the trial court
had erred in excluding, based on state law, his evidence connecting the woman’s
husband to the crime.43
During the time that Marsh’s appeal was pending, the Kansas Supreme Court
held in State v. Lepas that Kansas’ death penalty statute – under which Marsh had
been sentenced – was unconstitutional because it mandated a sentence of death when
the aggravating and mitigating circumstances offset and counterbalanced each
other.44 The court held that the U.S. Supreme Court decision in Walton v. Arizona,45
was not controlling because Arizona did not impose the death penalty when there was
a tie between the aggravating and mitigating circumstances.46 Notwithstanding, the
Kansas Supreme Court attempted to salvage the death penalty in the Claps case by
(1973); Washington v. Texas, 388 U.S. 14 (1967).
41 Id. at 1735.
42 126 S. Ct. 2516 (2006).
43 Id. at 2520-521.
44 State v. Claps, 272 An. 894, 899-903, 40 P.3d 139, 166-67 (2001). The Kansas statute
(An. Stat. Ann. §21-4624(e)) provided that juries should sentence a defendant to die – rather
than serve life in prison – when the evidence for and against imposing death were equal.
45 497 U.S. 639, 649-51 (1990), overruled on other grounds, Ring v. Arizona, 536 U.S. 584
(2002)(upholding Arizona’s death penalty statute that burdened the defendant with
establishing mitigating evidence sufficient to justify leniency once the state has established
an aggravating factor).
46 272 An. at 1006-1007, 40 P.3d at 226.
reconstructing the Kansas statute so that equipoise would not mandate the death
penalty by construing it to mean that the aggravating circumstance(s) must “outweigh
any mitigating circumstances found to exist” before capital punishment may be
imposed. 47
When Marsh appealed his death sentence in 2004, the Kansas Supreme Court
held that its attempt to rewrite the language of the statute was in error because the
process used to select which defendants are sentenced to death does not comport with
the fundamental respect for humanity underlying the Eighth Amendment. The Kansas
Supreme Court held that there was “no way” that Kansas’ weighing equation is
permissible under the Eighth and Fourteenth Amendments.48
Justice Thomas, writing for the 5-4 majority, said “our precedents establish that
a state enjoys a range of discretion in imposing the death penalty....”49 The decision
reversed the Kansas Supreme Court decision which held that the law violated the
Eighth Amendment’s protection against cruel and unusual punishment. In upholding
the Kansas statute, the U.S. Supreme Court cited Walton v. Arizona.50 In Walton, the
Court held that a state death penalty statute may give the defendant the burden to
prove that mitigating circumstances outweigh aggravating circumstances.51 Finding
that Walton controlled , the Court reasoned that the Kansas’ death penalty statute may
constitutionally direct imposition of the death penalty when the State has proved
beyond a reasonable doubt that mitigating circumstances do not outweigh
aggravating circumstances, even when they are of equal weight.52 Even if Walton did
not directly control, the Court stated, a state has a range of discretion in imposing the
death penalty, including how the aggravating and mitigating circumstances are
weighed, as long as the state system satisfies the requirements of Fermion v. Georgia
and Gregg v. Georgia.53 The Court reasoned that the use of mitigation evidence is
a product of the requirement of individualized sentencing.54 The Court also found
that the Kansas death penalty statute rationally narrows the class of death-eligible
defendants and allows a jury to consider any mitigating evidence that is relevant to
its sentencing determination.55
47 272 An. at 1018, 40 P.3d at 234.
48 278 An. at 534-45, 102 P.3d at 457-64.
49 126 S. Ct. at 2525.
50 Id. at 2522, citing Walton v. Arizona 497 US 639 at 645.
51 Id. at 2523.
52 Id. at 2524.
53 Id. at 2519, citing, Fermion v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 428
U.S. 153 (1976).
54 Id. at 2523.
55 Id. at 2526.
Justice Souter, with Justices Stevens, Ginsberg, and Breyer joining, issued a
dissenting opinion.56 Justice Shouter noted that the Kansas statute would lead to
death sentences in doubtful cases and “is obtuse by any moral or social measure.”57
Justice Souter agrees with the Kansas Supreme Court that essentially, the Eighth
Amendment forbids a mandatory death penalty in “doubtful cases”, and that this is
precisely what the Kansas statute does ( that is, a case where mitigating factors
equally balance aggravating factors is a “doubtful case” in Justice Shouters
estimation)58. Justice Souter’s concern is that in such a case, which he calls a tie, the
tiebreaker has nothing to do with the details of the crime or any facts about the
defendant, but that the statute presents mandatory death as the tiebreaker.59 Justice
Souter is troubled by this in light of the fact that the past decade has shown DNA test
exonerating numerous death row defendants.60 Citing the experience of Illinois,
Justice Souter’s dissent noted that 13 deathrow inmates were released between 1977
and 2000, triggering a state moratorium on executions, and referred to studies that
he said, showed that dozens of death row inmates in other states were wrongly
convicted.61 Justice Scalia said the studies that Justice Souter cited are factually
inaccurate, because many of the inmates they list as innocent were not exonerated but
were released for technical legal reasons.62
Oregon v. Guzek63
On February 22, 2006, the Supreme Court in an 8-0 decision (Justice Alito not
participating), ruled that Oregon courts are not required to allow the defendant to
introduce new alibi evidence pertaining to his innocence at the sentencing phase of
the trial.64 Two Justices, Scalia and Thomas, concurred in the result but would have
recognized a state right to bar all residual doubt of guilty evidence from sentencing
proceedi n gs . 65
Oregon tried Guzek, who was 18 at the time he was convicted, for the offense
of capital murder. The evidence showed that Guzek and two associates decided to
burglarize the Houser family home. After entering the home, an associate killed Rod
Houser, and Guzek then robbed and killed Lois Houser. After the police learned that
56 Id. at 2541 (Souter, Stevens, Ginsberg and Breyer, JJ. dissenting).
57 Id. at 2546.
58 Id. at 2543.
59 Id. at 2542
60 Id at 2544.
61 Id at 2544- 2545.
62 Id at 2531- 2535.
63 126 S. Ct. 1226 (2006).
64 Id. at 1230-231.
65 Id. at 1233-234 (Scalia and Thomas, JJ. dissenting).
Guzek held a special grudge against the Housers, they traced and apprehended him
and his associates. The associates confessed and testified at trial, painting Guzek as
the ring leader.
Guzek’s defense during the penalty phase of this trial rested in part upon an
alibi. He presented two alibi witnesses, his grandfather and his mother, who testified
that Guzek had been with one or the other at the time of the crime. The jury,
disbelieving the alibi, sentenced him to death.
Guzek appealed and the Oregon Supreme Court affirmed the conviction; but the
court ordered a new sentencing proceeding.66 Guzek was again sentenced to death;
he again appealed; and the Oregon Supreme Court again ordered re-sentencing.67
Guzek was sentenced to death for the third time; he again appealed; and again the
Oregon Supreme Court found the sentencing procedures faulty.68 Seeking to avoid
further errors at the next (the fourth) sentencing proceeding, the Oregon Supreme
Court also addressed the admissibility of certain evidence Guzek sought to introduce
at that proceeding, including live testimony from his mother concerning his alibi.69
The Oregon Supreme Court held that the Eighth and Fourteenth Amendments
provide Guzek a federal constitutional right to introduce this evidence at his
upcoming sentencing proceeding.70 At the State’s (Oregon) request, the U.S.
Supreme Court agreed to review that issue under certiorari.71
During the sentencing phase of Guzek’s trial, the defense tried to introduce
witness testimony – “findings of fact” – that placed him away from the murder
scene. The defense called this “mitigating evidence” designed to spare Guzek from
lethal injection. Different courts have disagreed on whether it was actually “alibi
evidence” that applied directly to whether a defendant was guilty and should have
been presented during the guilt or innocence phase of the trial.72
66 State v. Guzek, 310 Ore. 299, 307, 797 P.2d 1031, 1036 (1990).
67 State v. Guzek, 322 Ore. 245, 271, 906 P.2d 272, 287 (1995).
68 State v. Guzek, 336 Ore. 424, 464, 86 P.3d 1106, 1129 (2004).
69 336 Ore. at 456-63, 86 P.3d at 1124-128.
70 Id.
71 Oregon v. Guzek, 544 U.S. 998 (2005).
72 Justice Scalia’s concurrence lists a series of state and lower federal court cases that had
held that a capital defendant had no right to offer at sentencing mitigation evidence of
residual doubt as to his guilt, 126 S.Ct. at 1234 (Scalia and Thomas, JJ. dissenting), citing,th
Zeigler v. Crosby, 345 F.3d 1300, 1310 (11 Cir. 2003); Evans v. Thompson, 881 F.2d 117,th
Fisher, 572 Pa. 105, 115-116, 813 A.2d 761, 767 (2002); People v. Emerson, 189 Ill.2d
455, 470-472, 555 S.E.2d 534, 544 (2001); Melson v. State, 775 So.2d 857, 898-899
(Ala.Crim.App.1999).
The Supreme Court ruled that Oregon courts are not required to allow the
defendant to introduce new alibi evidence pertaining to his innocence at the
sentencing phase of the trial. The Court reasoned that states may put reasonable
limits on the evidence a defendant may present.73 Particularly at the sentencing
phase, when the question is not whether the defendant committed the crime but
how,74 and since the issue of innocence had already been litigated, and the state law
allows the defendant to present evidence of his innocence in the form of transcripts
from his original trial by a jury, the Oregon court did not have to hear Guzek’s
additional evidence of innocence.75
Justices Scalia and Thomas concurred in the result but lamented that the Court
had failed to take advantage of “the opportunity to put to rest, once and for all, the
mistaken notion that the Eighth Amendment requires that a convicted capital
defendant be given the opportunity, at his sentencing hearing, to present evidence and
argument concerning residual doubts about his guilt.”76 Justice Alito took no part in
the case.77
Brown v. Sanders78
On January 11, 2006, the Court in a 5-4 decision affirmed Sanders’ death
sentence and refined its death penalty jurisprudence by establishing a new rule: “an
invalidated sentencing factor (whether an eligibility factor or not) will render the
sentence unconstitutional by reason of its adding an improper element to the
aggravation scale in the weighing process unless one of other sentencing factors
enables the sentencer to give aggravating weight to the same facts and
ci rcum st ances.”79
Sanders was convicted of first-degree murder, attempted murder, robbery,
burglary, and attempted robbery. The jury, at the guilt phase of his trial, found four
“special circumstances” under California law, each of which independently rendered
him eligible for the death penalty: (1) murder committed during the course of a
robbery; (2) murder committed in the course of a burglary; (3) murder committed to
prevent a witness from testifying; and (4) murder committed in an “especially
heinous, atrocious, or cruel” manner.80 At the penalty phase, the jury was instructed
to consider a list of sentencing factors relating to the petitioner’s background and the
nature of the crime including “the circumstances of the crime to which the defendant
73 126 S.Ct.at 1232.
74 Id.
75 Id. at 1233.
76 Id. at 1233 (Scalia and Thomas, JJ. concurring in the judgment).
77 Id. at 1233.
78 126 S. Ct. 884 (2006).
79 Id. at 892 (emphasis in the original).
80 Id. at 893.
was convicted in the present proceeding and the existence of any special
circumstances found to be true.”81 The jury sentenced the defendant to death. The
California Supreme Court, on direct appeal, set aside two of the four “special
circumstances”: the burglary-murder special circumstance under state merger law,
and the “heinous, atrocious, or cruel” special circumstance because it had previously
found this standard unconstitutionally vague.82 However, it affirmed the death
sentence, referring to the Supreme Court’s decision in Zant v. Stephens to uphold a
death sentence decision despite the invalidation of two of several aggravating
factors.83 The Supreme Court denied cert on direct appeal.84
Sanders then filed for federal habeas, which was denied at the district court
level. The Ninth Circuit reversed, concluding that the California court had
misapplied Zant, which is only applicable to non-weighing states, in upholding the
verdict despite the invalidity of two of the special circumstances, because two others
remained.85 It determined California to be a weighing state, and applied the Court’s
decision in Stringer v. Black to mean that California courts could only uphold the
death sentence by finding the jury’s use of the invalidated special circumstances to
be harmless beyond a reasonable doubt or by independently reweighing the factors.86
The Supreme Court reversed the Ninth Circuit’s decision and held that no new
trial was constitutionally required.87 The Court established the rule that a jury’s
consideration and finding of an invalid sentencing factor taints any death verdict
unless the same facts and circumstances evidence a valid sentencing factor also found
by the jury.88 The Court said that the existing valid aggravating factors which fit the
description of the invalid factors were sufficient and therefore Sanders’ death
sentence was not “skewed” and neither did the invalid factors narrow the field “... of
aggravating facts the jury was entitled to consider in determining sentence.”89
Justice Scalia, joined by Chief Justice Roberts and Justice O’Connor, Kennedy,
and Thomas, delivered the opinion of the Court. Justices Stevens and Souter
dissented because they felt the majority’s announcement of a new standard
81 Id. at 888.
82 People v. Sanders, 51 Cal.3d 471, 515-20, 273 Cal.Rptr. 537, 563-65, 797 P.3d 561, 587-
83 51 Cal.3d at 520-21, 273 Cal.Rptr. at 565-66, 797 P.3d at 589-90.
84 Sanders v. California, 500 U.S. 948 (1991).
85 Sanders v. Woodford, 373 F.3d 1054, 1062-67 (9th Cir. 2004).
86 Id.
87 126 S.Ct. at 894.
88 Or to repeat the words of the Court, “[a]n invalidated sentencing factor (whether an
eligibility factor or not) will render the sentence unconstitutional by reason of its adding an
improper element to the aggravation scale in the weighing process unless one of the other
sentencing factors enables the sentencer to give aggravating weight to the same facts and
circumstances.” Id. at 892.
89 126 S. Ct. at 892-893.
inappropriately complicated the law in the area.90 Justices Breyer and Ginsberg
dissented because they felt that in some situations impressing upon the jury that the
facts and circumstances supported an invalid finding would taint the process even if
the same facts and circumstances also supported and resulted in a valid finding.91
90 Id. at 895-96 (Stevens and Shouter, JJ. dissenting).
91 Id. at 903 (Brewer and Ginsberg, JJ. dissenting)(“the problem before us is not a problem
of admissibility of evidence. It is a problem of the emphasis given that evidence by the State
or the trial court. If that improper emphasis is strong enough, it can wrongly place a thumb
on death’s side of the scale”).