Capital Punishment: Summary of Supreme Court Decisions of the 2002-2003 Term

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Capital Punishment: Summary of Supreme
Court Decisions of the 2002-2003 Term
Paul Starett W allace, J r.
Specialist i n American Public Law
American Law Division
In its 2001-2002 term, for the f irst time since 1988, the S upreme C ourt p laced
s u b s t a n t ial n ew restrictions on the powers t o impose t he death p enalty. In Ring v.
Arizona 1, i t overturned a death s entence impos ed by a j udge, holding t h a t d e f endants
have a S i x t h A m endment right to have a j ury–not a j udge–determine whether
aggravating fact ors warrant the imposition of t he deat h penalty. In At ki ns v. Vi rgi n i a ,2
it held that the ex ecution o f t he mentally retarded is cruel and unusual punishment. In
the 2002-2003 term, i n Miller-El v. Cockr el l the C ourt imposed an additional res triction
when it decided t hat an African-American death row inmate should h ave b een allowed
to appeal the rejection o f h is contention t hat t he jury that convicted him was screened
by prosecut o rs i n a raci al l y bi ased way. In Wiggins v. Smith, it held that a capital
defendant had b een denied effective counsel. In Sattazahn v. Pennsylvania, the C ourt
d e cided t hat t here was n o double-jeopardy b ar to Pennsyl vania’s s entencing s chem e
providing for t he death p enalty on retrial. A n d i n Stanford v. K entucky,itdenieda
habeas corpus petition filed b y Kevin Stanford which i n effect upheld the ex ecution o f
those who were 16 or 17 at the time of thei r crime (Kevin was 17 when he killed a gas
station attendant).
The capital punishment decisions which were decided during t he October 2002 Term
involved i ssues concerning: (1) the s tandard s t o b e u sed t o d etermine whether a capital
defendant should b e granted a certificate o f appealability in order t o contest t he denial of
his p etition for a writ o f h abeas corpus, (2) wh ether double j eopardy b arred t he imposition
of the deat h penalty on the basis of aggravating and mitigating fact ors which an earlier
j u ry had b een unabl e t o agree were suffi ci ent and as a consequence, a l i fe s ent ence w as
imposed, and (3) whether the performance of the defense attorneys at s entencing violated
the accused S ix th Amendment right to effective assistance of counsel.

1 536 U.S. 584 (2002).
2 536 U.S. 304 (2002).
Congressional Research Service ˜ The Library of Congress

In addition, the C ourt, by a 5 -4 vote, denied a d irect habeas corpus petition filed by
convicted murderer Kevin S tanford, w hose case p roduced the 1989 decision in Stanford
v. K ent ucky3 upholding the ex ecution of t hose who wer e 16 or 17 at the time of their
crimes. Stanford was 1 7 when h e k illed a gas s tation attendant in 1981. J u stice S tevens,
writing for the d issenters, made it clear in this case t hat an i nternal d eb at e i s underway
that could l ead the C ourt s omeday–but not now-to re-ex am i n e t he constitutionality of
ex ecuting i ndividuals w h o c o m m i tted t heir crimes when t hey were j uveniles. J ustice
Stevens cited t he state response t o t he Court’s d eci s i o n i n Stanford v. K entucky as
evi d ence of t h e s am e k i n d o f t rend t h at changed t he out l ook on ex ecut i n g t he ret arded.4
Therefore with regards t o t he ex ecution of j uveniles, we will have to wait to see i f t here
wi l l be i n creased pressure on st at e l egi s l at u res t o i ncrease the ex ecution ages, to h e lp
produce t he kind of trend t he Court might credit when it does t ake u p t he issue.
Miller-El v. Cockrell.5 In 1986, Thomas Miller-El, an African-American male was
convicted of murder and s entenced to death b y a Tex as j ury. During the j ury s election at
trial, the prosecutors struck ten of t he el even prospective African-American jurors from
the j ury pool. 6 African-Americans and Caucasians were questioned d ifferently about their
vi ews o n t he deat h p enal t y. 7 Most African-Americans h eard a detailed account of what
would happen t o M iller-El when he was ex ecuted, and t hen t hey were asked whet her t hey
could vote t o ex ecute someone.8 Only 6% of the potential C aucasian j urors h eard t he
same information.9 The p etitioner also p resented eviden ce of a p attern of race-based j ury
selection m ethods used by the Dallas C ounty D istrict Attorney’s Office, including an
office manual advising prosecutors to remove minority jurors. 10 The t ri al j udge rej ect ed
Miller-El’s equal p rotection challenge. He was found guilty an d s en t e n c ed to death.
While petitioner’s appeal was pending, t he Court established i n Batson v. Kentucky 11 that
it is unconstitutional t o s trike j urors s olel y on t he basis of race and put a great er burden
on the s tate to show that it was not engagi ng in such behavior by establishing a t hree-part

3 492 U.S. 361 (1989), petition f or wr it of habeas corpus denied , 123 S.Ct. 472 (2002).
4 Atkins v. Virginia, 536 U.S . 304 (2002). In At ki ns , t he Court overturned an earlier decision
which had held tha t t h e E i ghth Amendment did not bar execution of t he mentally retarded. It
reversed its position i n part on t he basis of t he number of s tates t hat had banned execution of t he
mentally retarded after the Court’s initial decision. In Thompson v. Oklahoma, 487 U.S. 815
(1988), t he Court c oncluded t hat t he Eighth Amendment barred t he execution of a j uve nile who
had not reached the a ge of 16. In the f irst Stanford case, the Court r efused to raise t he bar t o 18.
T he dissenters f elt t hat t he trend of s ubsequent state activity warranted an At ki ns -like r esponse;
a maj ority obviously were not ready t o go t hat f ar.
5 123 S. Ct.1029 (2003).
6 Id. at 1031.
7 Id. at 1037.
10 Id. at 1038.
11 476 U.S. 79 (1986).

proces s for eval uating equal protection claims such as the petitioner’s.12 On remand, the
trial c o u rt concluded t hat t he petitioner failed t o s atisfy step one of Batson because t h e
evi d ence di d not rai s e an i nference of raci al m o t i v at i o n i n t he S t at e’s u se of perem p t o ry
challenges . The Tex as C ourt of C riminal Appeal s also det ermined that the S tate would
have prevai l ed o n s t eps t w o and t h ree b ecause t h e p rosecut o rs had o ffered credi bl e, race-
neutral ex p lanations for t he African-American s ex cluded, i.e., t heir reluct ance to assess,
or reservations concerning, imposition of t he deat h penalty to the ex t ent t hat t he petitioner
could not prove purposeful discrimination.
After t he petitioner’s direct ap p eal and state habeas corpus petitions were denied,
he filed a federal habeas corpus petition under 28 U.S.C. § 2254 raising a Batson cl ai m
and other issues . The Federal District C ourt denied relief and the Fifth Circuit C ourt of
Appeal s refused to issue a C ertificat e of Appeal ability (COA).13 The Fifth Circuit noted
that a C OA will issue “only i f t he applicant h as made a s ubstantial s howing o f t he denial
of a constitutional right”. 14 Moreover, it reasoned t hat 2 8 U.S.C. § 2254(d)(2) required
it to presume s tate-court findings correct unless i t d etermined t h a t t h e findings would
result in a d ecision which was unreasonable i n light of clear and convincing evidence.
The S upreme C ourt h eld t hat t he Fi fth C ircuit should h ave i ssued a C OA to review
the District C ourt’s denial of habeas co r pus relief t o t he petitioner b ecause it applied
more than the t hres hold s tandard required. All t he petition needed to show to satisfy 28
U.S.C. § 2253(c) was t hat h is claim “would b e found debatable o r wrong among jurists
of reason.”15
In a finding by the Fifth Circuit t hat Miller-El had failed to establish that the state
court resolution o f h is claim was both unreas onable and con t r a r y to clearly established
federal l aw, t he Fi fth C ircuit had improperly addressed t he merits of the petitioner’s cl ai m
rather than limiting its inquiry to whet h e r t h e merits of his claim were debatable b y
reasonable j urists.
J u stice Kennedy delivered the opinion of the C ourt, in which C h i ef J ustice
Rehnquist, and J u stices Stevens, O’Connor, S ca lia, S outer, Ginsburg, and Breyer j oined.
J ustice S calia filed a concurring opinion in which h e reviewed t he argu ments o n b ehalf
of the S tate that made the i ssue of whether reas onable j urists might debate the m erits of
the Batson cl ai m a cl ose question. J ustice Thomas dissented. He s ai d M iller-El did not
prove Afri can-Am eri can j u rors were ex cl uded b ecause of race.

12 T he t hree-part process f or evaluating claims t hat a prosecutor used peremptory challenges in
vi olation of t he Equal Protection Clause are: ( a) a defendant must make a prima facie s howing
that a peremptory challenge has been exercised on t he basis of r ace, (b) i f t hat s howing has been
made, t he prosecution must offer a race-neutral basis for s triking t he j uror i n question, and ( c)
in light of the parties’ submissions, t he trial c ourt must determi ne whether t he de f e n d a n t h a s
shown purposeful discri mi nation. 476 U.S. at 96-8.
13 Before a prisoner s eeking post c onviction r elief under 28 U.S.C. § 2254 ma y a ppeal a district
court’s denial or dismi ssal of t he petition, he must seek and obtain a certification of appealability
from a circuit j ustice or j udge. 28 U.S.C. § 2253.
14 28 U.S.C. § 2253(c)(2).
15 123 S. Ct. a t 1046.

Sattazahn v. Pennsyl vania.16 David S attaz ahn was convicted of first d egree m urder
for k illing a restaurant manager whom he and an accomplice were t rying t o rob. At the
sentencing phase of his t rial, P ennsyl vania i nt roduced as an “aggravat i n g fact or” t he fact
that he killed while perpet rating a felony. As “mitigating fact ors”, 17 Sattazahn presented
his l ack of a s ignificant h istory of prior convictions and h is young age at t he time of the
crime. After 3½ hours o f d eliberation, the j ury d eadlocked: n ine were against ex ecution,
and t hree were in favor. The judge dismissed t he jury and s entenced Sattazahn to life i n
prison without parole as Pennsyl vania l aw re quires a judge t o d o whenever a death p enalty
jury is deadlocked. S attaz ahn a p p e aled hi s first degree murder conviction. However,
before the appeal was d ecided, Sattahazn pled gu ilty to five different counts o f burgl ary,
one count of robbery, and one c o unt of third degree m urder (which cannot be punished
by ex ecution). S ubsequently, S attaz ahn won h is appeal b ased upon a faulty jury
instruction. There was a retrial and S attaz ahn was convicted, and again t he State s ought
the deat h penalty. This time, t he Stat e added an a d d i t i onal aggravating fact or at the
sentencing hearing: that Sattaz ahn had a sign ificant h istory of felony convictions and t he
jury sentenced him t o d eath. The p etitioner a rgued t hat h e s hould not have faced the d eath
penal t y i n h i s second t ri al b ecause t h e t ri al j udge h ad sent enced hi m t o l i fe i n p ri son
following his first trial.
In a 5 - 4 d e c i s i on, the S upreme C ourt upheld the d eath s entence. J u stice S calia
delivered the opinion of t h e C o u r t w i t h respect to Parts I, II, IV, and V, in which C hief
J u stice R ehnquist and J ustices O’Connor, Ke nnedy, and Thomas joined, and an opinion
w i t h r e s p e c t t o P a r t III, i n w h i c h C h i e f J u s t i c e R e hnquist and J ustice Thom a s j o i n e d .
J u stice O’Connor filed an opinion concurri ng in part and concurr i n g i n the j udgment.
J ustice Ginsburg filed a dissenting opinion, in whi ch J ust i ces S t evens, S out er, and Breyer
The S uprem e C ourt s ai d i n a l i n e o f cases com m enci n g w i t h B u l l i ngton v . M i s s o u r i ,18
“...the touchston e for double-jeopardy p rot ection i n capital-sentencing proceedings is
whet her t here has b een an ‘acquittal.’”19 The “petitioner h ere cannot establish t hat t he20
j u r y or the court ‘acquitted’ him during h is first capital-sentencing proceeding. ” The
Court ruled that Pennsyl vania’s s ys tem o f re quiring a d efault life s entence i s not the s ame21
for purpo s e s o f double j eopardy as an outrigh t acquittal o f t he charges. “W hen, as in
this cas e, the j ury deadlocks i n t he penalty phase of a capital t rial, i t does not ‘decide’ t hat
t h e p rosecut i o n h as fai l ed t o p rove i t s case for t h e d eat h p enal t y. R at her, t h e j ury m akes
no deci si on at al l ”22 wrote J ustice O’Connor in an opinion concurring with the m ajority.

16 123 S. Ct. 732 (2003).
17 Facts s ugge sting t hat t he penalty should not be imposed.
18 451 U.S. 430 (1981).
19 123 S. Ct. a t 738.
20 Id. a t 738-39.
21 Id..
22 Id. at 743.

In the dissent, J ustice Ginsb u r g s ai d t he issue was “genuinely debatable” but that
double j eopardy s hould p revent Sattaz ahn’s d eath s entence i n t he second trial.23 She said
“I recogn ize t hat t his i s a novel and close question: Sattazahn was not ‘acquitted’ of the
deat h p enal t y, but hi s case was ful l y t ri ed and the court, on its own m otion, entered a final
j udgm ent –a l i fe s ent ence–t erm i n at i n g t he t ri al p roceedi n gs .”24 She also s aid t he Court’s
decision “confronts d efendants with a p erilous choice, .... [ I] f a d efendant sentenced to
life after a j ury d eadlock chooses to appeal her underlyi n g c o n v iction, she faces the
possibility of death i f s he is successful on appeal but convicted on retrial. If , o n t he other
hand, the d efendant loses h er appeal, o r choos es to forgo an appeal, t he final j udgment for
life s tands.”25 In the end, she s aid, “a defendant in Sattazahn’s position m ust relinquish
either her right to file a potentially meritorious appeal , or her stat e-granted entitlement to
avoid t he death p enalty.”26
Wiggins v. Sm ith.27 In 1989, petitioner W iggi ns was convicted of capital m urder b y
a M aryl and j udge and subsequently elec t e d t o b e s entenced by a j ury. His public
de f e n d ers m oved t o b ifurcate t he sentenci ng, s tating t hat t hey p lanned t o p rove that
Wiggi ns did not kill the victim b y h i s o w n hand and t hen, if necessary, t o p resent a
mitigation cas e. The court denied t he motion. At sentenci ng, one of the defense attorneys
told the j u r y i n h er opening statement t hat t hey would h ear, among other t hings, about
W i ggi ns’ d i ffi cul t l i fe, but t h i s evi d ence was n ever i n t roduced. Before cl o si ng argu m ent s
and outside the p resence o f t he jury, t he defense attorney made a t entative overture t o t he
court t o preserve t he bifurcation i ssue for app eal , det ailing t he mitigation cas e t hey as
defense counselors would h ave p resented. The lawyers for W i ggi ns never m entioned h is
life h istory or family background. The j ury s entenced Wiggi ns to death, and t he Maryland
Court o f Appeals affirmed. R ep resented by new counsel, W iggi ns sought postconviction
relief, arguing that his t rial counsel had re ndered i neffective assistance by failing t o
investigate and present mitigating evidence of his dysfunction background which i ncluded
sever physical and s ex ual abuse h e s uffere d at t he hands of his m other and while under
the care of a series of foster parents. The t rial court denied t he petition, and t he Stat e
Court o f Appeals affirmed, concluding that trial counsel had m ade a reasoned choice to
proceed wi t h what t h ey consi d ered t h ei r b est d efense. S ubsequent l y, t he federal d i s t ri ct
court granted W i ggi ns relief o n h is federal habeas petition, holding that the M aryl and
courts’ rejection o f h is ineffective assistan ce claim i nvolved an unreasonable application
of clearly established federal law. In reversing, the Fourth Circuit found trial counsel’s
strategi c decision to focus on W iggi ns’ d i r ect responsibility to be reasonable. The
Supreme C ourt granted certiorari 28 and reversed t he Fourth Circuit C ourt o f Appeals.

23 Id. at 744.
24 Id. at 747.
25 Id. at747-48.
26 Id. at 748.
27 123 S. Ct. 2527 (2003).
28 537 U.S. 1027 (2002).

The C ourt s aid t he legal p rincipal has b een es tablished t hat governs claims of
ineffective assistance of counsel in Strickland v. Wa shington 29 and i n a 7-2 d ecision, held
that counsel did not conduct a reasonable i nves tigation and reversed the d eath s entence
of W i ggi ns . An i n ef fective assistance claim h as two components: A p etitioner m ust
sho w t h a t c ounsel’s performance was d eficient, and that the d eficiency p rejudiced the
defense. 30 To es t a blish deficient performance, a petitioner m ust dem onstrat e t hat
counsel’s representation “fell below an objective s tandard o f reasonableness.”31 The
Court h as declined to articulate s pecific guidelines for appropriate attorney conduct but
i n st ead em phasi z ed t hat “[ t ] h e p roper m easure o f at t o rney perform ance rem ai n s s i m p l y
reasonableness under p revailing p rofessional norms.”32 Counsel decision not to ex pand
their investigation beyond a presentence investigation report and Baltimore City
Department of Soci al Services records fel l s hort of t he professional s tandards prevailing
in Maryland in 1989.33 Standard practice i n M aryl and capital cas es at that time incl uded
the p reparation o f a social history report. Although t here were Stat e funds to retain a
forensic social worker, c ounsel chose not to commission a report. Moreover t he Court
concluded t hat W iggi ns had b een prejudiced by the failure to fully investigat e his soci al
history given the rel ativ e w eak n e s s of the aggravating evidence o ffered b y t he
prosecution. Wiggi ns was t herefore entitled t o a new s entencing hearing. 34
J u stice S andra Day O’Connor’s opinion was j oined by C hief J u s t i ce W illiam
Rehnquist and J ustices J ohn Paul Stevens, An thony Kennedy, David Souter, R uth Bader
Ginsburg, and S tephen Breyer. J ustice Antonin S calia, with w h o m J ustice C larence
Thom as j o i n ed, d i ssent ed.
In the pas t, the C ourt has stressed t he importance of effective l egal repres entation but
has provided leeway for lawyers to conduct t rials as they deemed appropriate.35 The
decisions in Wi ggins, however, could s end a strong sign al to lower courts reminding them
of the n eed for m ore v igilant defenses in death-penalty cases.

29 466 U.S. 668 (1984).
30 123 S. Ct. a t 2535.
31 Id.
32 Id.
33 T he origi nal l awyers concentrated on tryi ng to raise doubts about their client’s guilt. Although
they had s ome i nformatio n about Wiggi ns’ early life, they did not order t he usual detailed
b a ckgr ound investigation t hat could be used t o win sympathy from a j ury. If j urors kn e w t h e
ghastly details, t hey might well have chosen a life s entence f or Wigge n s , t h e S upreme Court
34 This is marked contrast to the Court’s t reatment of Woodford v. Visciotti , 537 U.S. 19 (2002)
where t he lower c ourts had c onceded Vi sciotti ’s ineffectiveness of counsel claim, but found no
prej udice because of the r elative s trengt h of t he aggr avating f actors i n t he case.
35 Strickland v. Washington, 466 U.S. 668 (1984).