It took the U.S. Court of Appeals for the 9th Circuit to bring a
U.S. Supreme Court decision of 2002 into focus. The liberal 9th
decided that the High Court’s ruling that juries, not judges, must
decide between life and death in capital cases is retroactive, and
the hell with stare decisis. The 9th majority Judge Sidney
Thomas declared the Supreme decision “altered the fundamental
bedrock principles applicable to capital murder trials,” and then
Judge Thomas and his majority judges decided to alter the bedrock
even more by ruling that the decision applies to cases already
decided and to more than a hundred prisoners awaiting executions in
the Western States.
The 9th ruling applies for now to Arizona, Idaho and Montana,
the three states that have used judges-only sentencing in capital
cases. Montana since has changed its procedure to follow the High
Court’s mandate, but has half a dozen cases left over from the old
established way.
The argument had been that for judges to render decisions
between life imprisonment or death they were frequently required to
consider facts, the verification of which lies within a jury’s
purview. Remember? The jury decides the facts. The judge applies
the law, as evidence is adduced, and at trial’s conclusion recites,
with a lot of input from the lawyers, how the jury may apply the
law to the facts it is weighing. Now, having reached a verdict on
the facts, juries are charged with deciding what the law should
exact — the penalty phase. A province once that of a judge.
Appeals will argue that the High Court has, as Judge Thomas
approvingly states, whacked away a lot of bedrock in arrogating a
jurist’s responsibility and handing it to a dozen to wrestle with.
Or at least, that those cases already decided should not be
overturned retroactively.
To take from one man the decision of life or death and place it
in the jury room filled with a dozen raised at the teat of moral
relativism certainly increases the chances for defendants to escape
the ultimate penalty. Despite all the prior voir dire,
among twelve peers these days there are certain to be some, or one,
skittish about assessing the ultimate penalty. Scott Crichton,
executive director of Montana’s American Civil Liberties Union,
said the new ruling “takes us a step closer to the day when the
United States will join the civilized nations of the world in
outlawing the cruel, inhumane and biased application of the death
penalty.”
In other words, the High Court that once had virtually outlawed
the death penalty, then reinstated it, is now making that large
ship-of-state turn once again. And juries, sometimes given to
revolt on facts alone, now have another arrow in the quiver of
nullification. As O. J. Simpson pursues the killer of his wife and
her friend through the sandtraps of America he may well reflect on
the vagaries of leaving fate up to a dozen.
A befuddled District of Columbia jury’s decision in 1982 is
still being played out in the federal courts in Washington. The 12
found John Hinckley not guilty by reason of insanity in the
shooting of President Reagan and three others in 1981. Hinckley was
sent to St. Elizabeths Hospital where doctors began doing what
doctors do — cure.
Gradually, Hinckley recovered, his doctors said, got more
privileges, acquired a girl friend, began making supervised
outings, the theater, bowling. James Brady would not bowl again,
and who knows what effect a bullet in the chest had on Mr. Reagan’s
subsequent decline.
Now John Hinckley wants a federal judge to allow him a series of
10 unsupervised visits to his parents’ home in Williamsburg,
Virginia. Wait a minute. A single Federal District Judge? Should he
be allowed to judge the facts here? Where is that jury, the twelve
tried and true? This freedom, this restoration, this virtual grant
of life. Isn’t it too much to place in the hands of one man?
A silly argument, you say. There are lots of them.
