Death Penalty Law - Holly Geerdes and Nikki Cox

• Citation: Vol. 57 No. 2
• Publication year: 2006

Death Penalty Lawby Holly Geerdes^* and Nikki Cox^**

I. Introduction

This Article surveys fifteen death penalty decisions of the United States Supreme Court from June 1, 2004 through June 20, 2005. It was written as a companion to Death Penalty Law,¹ a survey of death penalty decisions of the Georgia Supreme Court from June 1, 2004 through May 31, 2005. Focusing on the Court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not concern holdings in capital cases that are common to other criminal appeals.

A. Medellin v. Dretke

In Medellin v. Dretke,² a Mexican national was sentenced to death in Texas. The state trial court rejected his state habeas corpus claim that the state had failed to notify him of his right under the Vienna Convention³ to consular access.⁴ The district court also denied his federal habeas corpus petition making the same claim.⁵ While Medel-lin's case was awaiting appeal to the Fifth Circuit Court of Appeals, the International Court of Justice ("ICJ") issued a decision regarding various Mexican nationals sentenced to death in the United States.⁶ The ICJ determined that:

the Vienna Convention guaranteed individually enforceable rights, that the United States had violated those rights, and that the United States must "provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals" to determine whether the violations "caused actual prejudice," without allowing procedural default rules to bar such review.⁷

Despite the ICJ's Avena judgment, the Fifth Circuit denied Medellin's appeal based on his procedural default and on its prior holdings that the Vienna Convention did not create an individually enforceable right.⁸

After the United States Supreme Court granted certiorari, but before oral arguments began, President George W. Bush issued a memorandum stating that the United States would uphold its international obligations and require state courts to follow the ICJ's decision in Avena⁹ Medellin then filed another application for state habeas corpus relief, and the Supreme Court ultimately dismissed its grant of certiorari.¹⁰

In dismissing the writ of certiorari, the Court noted five issues that could prevent federal habeas relief, and thus render its opinion of Medellin's case merely academic or advisory.¹¹ First, a violation of the consular access provisions under the Vienna Convention may be barred from judicial determination in a federal habeas proceeding unless Medellin establishes that Reed¹² does not prevent his claim.¹³ Second, regarding the claims that the state had "adjudicated on the merits," federal habeas reliefis allowed only if the adjudication "was contrary to, or an unreasonable application of, clearly established Federal [sic] law, as determined by the Supreme Court."¹⁴ The three claims that the state court "adjudicated on the merits" were (1) that the Vienna Convention did not create judicially enforceable individual rights, (2) that state procedural default rules barred Medellin's claim, and (3) that Medellin had failed to show he was prejudiced by the failure to notify the Mexican consulate of his arrest.¹⁵ Before receiving federal habeas relief, Medellin would have to overcome the deferential standard for these three findings.¹⁶

The third issue that may have barred federal habeas relief was that "a habeas corpus petitioner generally cannot enforce a 'new rule' of law."¹⁷ The Court would have to decide how the Avena judgment affects its ordinary "new rule" jurisprudence before granting relief.¹⁸ Fourth, in order to receive federal habeas relief, Medellin must first get a certificate of appealability by making a substantial showing that his alleged treaty violation was a denial of a constitutional right.¹⁹ Finally, Medellin would have to show that he exhausted all available state court remedies in order to gain federal habeas relief based on the President's memorandum or the ICJ's Avena judgment.²⁰ Because of these five unresolved issues and the chance that the state court would grant relief, based on the defendant's habeas corpus claim, the Supreme Court dismissed the writ of certiorari granted to Medellin's case.²¹

B. Schriro v. Summerlin

In Schriro v. Summerlin,²² Summerlin was convicted of first-degree murder and sexual assault. The trial court imposed a death sentence based on a finding of two aggravating factors,²³ and the Arizona Supreme Court affirmed the sentence on direct review.²⁴ While the case was pending in the Ninth Circuit Court of Appeals, the United States Supreme Court decided two germane cases. First, in Apprendi v. New Jersey,²⁵ the Court held that the constitutional guarantees of due process and trial by jury require that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."²⁶ Second, in Ring v. Arizona,²⁷ the Court held that, because Arizona law authorized the death penalty only if an aggravating factor was present, Apprendi required the existence of such a factor to be proved to a jury, not a judge.²⁸ Retroactively applying the new rule announced in Ring, the Ninth Circuit invalidated Summerlin's death sentence.²⁹

The two theories relied on by the Ninth Circuit to justify its retroactive application of Ring were either that it was a substantive rule or, alternatively, that it was a "watershed" procedural rule.³⁰ New substantive rules generally apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of 'an act that the law does not make criminal'" or faces a punishment that the law cannot impose upon the defendant.³¹ New procedural rules generally do not apply retroactively because "they do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise."³² only an extremely narrow set of "'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding" will apply retroactively.³³ After considering both theories, the United States Supreme Court reversed the Ninth Circuit's decision, concluding that the Ring procedural rule did not apply retroactively to cases already final on direct review.³⁴

The Supreme Court first reasoned that the Ring holding was procedural because it rested entirely on the Sixth Amendment³⁵ right to a jury trial and did not alter the range of conduct or class of persons that Arizona law subjected to the death penalty.³⁶ Accordingly, Ring, like other procedural rules allocating decision-making authority, "altered the range of permissible methods for determining whether a defendant's conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment."³⁷ The trial court rejected the defendant's argument that Ringwas substantive because it modified the elements of his offense.³⁸ The Court reasoned that requiring a jury to find a certain fact because the state of Arizona made that fact essential to the death penalty, a procedural holding, was distinguishable from the Court making a certain fact essential to the death penalty, a substantive holding.³⁹

The Supreme Court further reasoned that Ringwas not a "watershed rule of criminal procedure."⁴⁰ The judicial factfinding permitted by Ring did not so "seriously diminish[]" the accuracy as to create an "impermissibly large risk of punishing conduct the law does not reach,"⁴¹ and therefore, the fundamental fairness and accuracy of the criminal proceeding was not affected.⁴²

C. Deck v. Missouri

Beginning on the first day of the sentencing phase in his capital case in Deck v. Missouri,⁴³ Deck was shackled with visible leg irons, handcuffs, and a belly chain.⁴⁴ The trial court overruled defense counsel's numerous objections to the restraints, and the jury ultimately sentenced Deck to death.⁴⁵ Affirming the death sentence on appeal, the Missouri Supreme Court concluded that the restraints did not prejudice the defendant and that the trial court did not abuse its discretion in requiring shackles because the record indicated Deck was a flight risk.⁴⁶ The United States Supreme Court granted certiorari and held that the use of visible shackles during the penalty phase of a capital case is unconstitutional, "unless that use is justified by an essential state interest . . . specific to the defendant on trial."⁴⁷

First, the Supreme Court recounted the long history of the firmly established rule that use of visible shackles in the guilt-innocence phase of a criminal trial is forbidden, unless overcome by an essential state interest such as escape prevention, physical security, or courtroom decorum.⁴⁸ Three fundamental legal principles motivated the judicial hostility to shackling in the guilt-innocence phase: first, visible restraints undermine the presumption of innocence until proven guilty;⁴⁹ second, physical restraints can diminish the constitutional right to counsel because they may hinder the defendant's ability to participate in his own defense; and third, in order to reflect the seriousness of the proceedings, judges must maintain a formal dignity in their courtrooms, which includes respectful treatment of the defendants.⁵⁰ Given the overall prejudicial effect of visible shackles, the constitutional right to due process does not allow the use of these restraints unless justified by specific circumstances of the particular case.⁵¹

Considering these three principles in the context of the penalty phase of a capital case, the Supreme Court held that the same rule against use of visible restraints applied to the defendant's case.⁵² Although the first concern of undermining the presumption of innocence no longer...