State v. Gales, 658 N.w.2d 604 (2003): the First Test of Nebraska's New System of Capital Punishment--the Battle Is Over, but What About the War?

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 932. State v. Gales, 658 N.W.2d 604 (2003): The First Test of Nebraska's New System of Capital Punishment--The Battle Is Over, But What About the War?

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Note*

State v. Gales, 658 N.W.2d 604 (2003): The First Test of Nebraska's New System of Capital Punishment--The Battle Is Over, But What About the War?

265 Neb. 598

TABLE OF CONTENTS

I. Introduction ...................................................... 932
II. Background ....................................................... 936
A. The Road to Ring ............................................ 936
1. Walton v. Arizona ........................................ 936
2. Jones v. United States ................................... 938
3. Apprendi v. New Jersey ................................... 939
B. Ring v. Arizona ............................................. 942
C. Nebraska's Special Session: Legislative Bill 1 ................ 943
D. The GalesCourt and the Scope of Ring ..................... 945
III. Analysis ........................................................ 950
A. Doctrinal Shift: Substance Over Form .......................... 951
B. Ring's Unanswered Questions and Implications ................ 956
C. Grounds for Expansion: Sixth or Eighth Amendment? ............. 959
1. Retribution and the Community Conscience .................... 960
2. The Historic Role of the Jury: Checks and
Balances .................................................... 963
3. Commentators' Recommendations: Judge Versus
Jury ........................................................ 967
IV. Conclusion ....................................................... 975

I. INTRODUCTION

The use of capital punishment has been a major source of controversy in the modern world. The United States--more specifically its

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Supreme Court--has long struggled to find a balance between public demand for this well established practice and criticisms about its potentially arbitrary and discriminatory application.(fn1) Ring v. Arizona(fn2) was among the most recent of these developments. There, the United States Supreme Court held that capital defendants are entitled to jury determination of facts which render them vulnerable to a penalty more severe than the prescribed statutory maximum.(fn3) Specifically, such factual findings can include aggravating circumstances when such circumstances are treated as functionally equivalent to elements of the crime of capital murder.(fn4) This ruling directly invalidated Arizona's capital sentencing scheme and called into question the capital sentencing schemes of at least four other states that relied on judges for both factfinding and the ultimate sentencing decision.(fn5)

Nebraska was among these states. Thus, the Governor quickly called the legislature in to a special session to address the questionable status of the state's death penalty system.(fn6) The result of the Special Legislative Session was Legislative Bill 1 ("LB 1").(fn7) LB 1 restructured the sentencing decision to allow juries to determine aggravating circumstances, while a three-judge panel continued to determine(fn8) mitigating circumstances, the balancing of the two, and proportionality review.(fn9) The bill was passed with special provisions allowing it to take effect immediately.

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Ring gave many death row inmates a glimmer of hope for a new appeal on the grounds of a Sixth Amendment violation. One such inmate was Arthur L. Gales, who was convicted by a Nebraska jury of the attempted second-degree murder of his girlfriend and two counts of first-degree murder for the attack on her two young children.(fn10) At the penalty phase of Gales' trial, the sentencing judge evaluated the presence of aggravating and mitigating factors and weighed the two against each other. The judge concluded that the mitigating evidence was insufficient to outweigh the aggravators, and sentenced Gales to consecutive death sentences for the murders of the children. During the course of Gales' sentencing proceedings, he challenged the new sentencing structure, arguing that it violated his Sixth Amendment right to a jury trial.(fn11) Because Gales preserved the issue before the judgment became final, he was able to challenge the judicial sentencing on appeal without implicating the retroactivity questions left unresolved by Ring.(fn12) Gales made a number of attacks on sentencing procedures used in his case and ultimately succeeded in having his death sentences vacated and remanded for retrial under the new sentencing scheme. One of Gales' arguments involved a facial challenge to the constitutionality of LB 1 on the basis that it did not allow the jury to determine mitigators, balance aggravators and mitigators against each other, or engage in proportionality review. The Nebraska Supreme Court rejected this argument by saying that neither Ringnor Apprendi v. New Jersey,(fn13) Ring's impetus, directly called for such procedures. Instead, those holdings are limited to the determination of aggravating factors because of their function as elements in this context. However, the Nebraska Supreme Court alluded to the possibility that language in Ring casts doubt on the future viability of this distinction.

The Gales case is unique and somewhat idiosyncratic because of its procedural history and arguably unsympathetic defendant.(fn14) How

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ever, despite these idiosyncrasies, Gales' arguments and the Nebraska Supreme Court's analysis of those arguments suggest the possibility of new developments in the United States Supreme Court's death penalty jurisprudence and foreshadow the significance that such developments could have on the new Nebraska capital sentencing scheme. A critical look at the cases leading up to Ring suggests a doctrinal shift in the U.S. Supreme Court's philosophy about the role of the capital jury and the possibility of subsequent evolutions of these doctrines, especially in the area of mitigating circumstances. The U.S. Supreme Court in Ring recognized the limits of the question before it and exercised judicial restraint by limiting its holding to the facts and issues presented by that case, as did the Nebraska Supreme Court in Gales.However, in the course of such analyses, both courts provided dictasuggesting the possibility for further developments when the facts presented themselves. These glimpses into the future leave many states, including Nebraska, in limbo as to the future legitimacy of their new capital sentencing schemes.

Because of the tenuous position in which the Nebraska Unicameral finds itself, this Note will examine U.S. Supreme Court doctrine in this field in an effort to determine a navigable course through the changing tides of the Court's death penalty jurisprudence. Part II provides an overview of Nebraska's legislative response to Ring's edicts. Part II also examines the arguments presented in Galesand the foundation of these arguments in the cases leading up to Ring. Next, Part III analyzes these arguments with a view toward predicting both future progressions and the ultimate implications of such progressions on the new Nebraska sentencing scheme. Specifically, section III.A demonstrates the Court's recent doctrinal shift that emphasizes substance over form in its treatment of capital sentencing factors. Section III.B discusses the questions explicitly left unanswered in Ring and the Court's recognition that this shift could have greater implications on capital sentencing jurisprudence rooted in either the Sixth or Eighth Amendment. Section III.C then examines the Sixth and Eighth Amendment arguments for expanding the jury's role in capital sentencing by analyzing those factors the Court has deemed relevant. The subdivisions of section III.C consider the jury's retributive function as the conscience of the community, the historic role of the jury in capital cases, and modern empirical research comparing judicial sentencing with jury sentencing. Examination of these various sources suggests, and it is the thesis of this Note, that the Court is likely to further expand its definition of the jury's role in capital sentencing under either Sixth or Eighth Amendment principles, which would re

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sult in the invalidation of the newly adopted Nebraska sentencing scheme.

II. BACKGROUND

A. The Road to Ring

Ring v. Arizona(fn15) constitutes the most substantial installment in a progression of capital punishment cases dealing with the Sixth Amendment. This progression of cases is also closely tied to constitutional due process requirements regarding the distinction between elements and sentencing factors. These distinctions can be traced back to In re Winship,(fn16) Mullaney v. Wilbur,(fn17) and Patterson v. New York,(fn18) as well as McMillan v. Pennsylvania,(fn19) Almendarez-Torres v. United States,(fn20) and Hildwin v. Florida.(fn21) However, for the purposes of economy, only Ring's immediate predecessors, Walton v. Arizona,(fn22) Jones v. United States,(fn23) and Apprendi v. New Jersey(fn24) will be examined in detail.

1. Walton v. Arizona(fn25)

In Walton, the Court held that Arizona's capital sentencing scheme was compatible with the Sixth Amendment because the judicially-determined aggravating circumstances used to determine death eligibility qualified as sentencing factors rather than elements of the offense

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of capital murder.(fn26) Jeffrey Walton was found guilty of committing first-degree murder and sentenced to death by a judge pursuant to Arizona law.(fn27) Arizona's sentencing scheme, at that time, provided for a separate sentencing hearing "before the court alone" to determine whether life or death was appropriate.(fn28) Within that hearing, the State bore the burden of establishing the existence of any aggravating factors, while the defendant bore the burden of establishing mitigators.(fn29)

At the time Walton was...