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.