A deeply split Supreme Court in Uttecht v. Brown, as noted earlier, reversed the Ninth Circuit on the issue of juror death qualification. Justice Kennedy’s opinion, as he often does, cites the broad principles at issue and then focuses tightly on the facts at issue.
SCOTUS blog notes the operative facts as:
The ruling grows out of the murder trial of Cal Coburn Brown, who was convicted and sentenced to death for first degree murder. Brown was prosecuted for raping and torturing a woman for two days before killing her and dumping her body in a parking lot. During jury selection, one potential member of the panel — his name was Richard Deal, although the Supreme Court refers to him throughout only as “Juror Z” — repeatedly said that he could impose the death penalty in circumstances that he thought appropriate. But some of his answers (recounted in an appendix to the majority opinion) show some misunderstanding of Washington state law on punishment for murder, and some ambiguity about just when Mr. Deal would be willing to vote for a death sentence.
Although some want to see larger trends at play here, I don’t. Here are some reasons why:
- The fact that Kennedy wrote the opinion and Stevens wrote the lead dissent means that at the conference the majority was likely 5-4 in favor of reversal.
- Orin Kerr notes the high snark factor in dissent by Justice Stevens. Although it would be easy to say the snarkiness marks merely the growing tension on the Court between the “pro-life” Catholic majority and the dissenters, that isn’t necessarily so. The majority could have moved broadly as it did in Gonzales v. Carhart, it didn’t. The failure to move broadly suggests, Justice Kennedy, and perhaps one (or more) of the majority aren’t ready yet to scrap Witherspoon / Witt and that the tension marks merely how the close the sides actually are in this case.
- The Court granted cert this Term in nine capital cases. One of the nine remains to be decided (Panetti). The Court ruled in favor of death four times (Ayers, Schriro, Lawrence, Brown) and in favor of the defendant four times (Abdul-Kabir, Brewer, Smith, Weaver). Only one case was not decided by how Justice Kennedy aligned himself (Weaver). Justice Kennedy’s vote, to repeat the obvious, governs the Court’s capital jurisprudence. He doesn’t seem to be in favor of dismantling it, but rather slowly modifying it.
In recent terms those cases granting relief to the condemned tended to come from the Fifth Circuit which historically would affirm almost any case which came before it, including those where counsel was asleep, drunk or stoned at trial. The Ninth Circuit, where Brown originated, has historically been the Fifth’s mirror opposite, and, hence, the court from which decisions in favor of the defendant are the most likely to be reversed. Today’s opinion – when in conjunction with the capital cases from the rest of the term – is nothing more than reigning in what Justice Kennedy likely perceives as the excesses of the Courts of Appeals that he sees as out of the mainstream.
The import of the Uttecht v. Brown, at least in my mind, lies in the process Justice Kennedy notes along the way to reaching his decision — a process he implies through out the opinion is the reason he voted to deny habeas relief. He painstakingly sets forth that process the appendix to the Court’s opinion and its description of the voir dire. Voir dire lasted 11 days. The panel “filled out” questionaires. The trial court explained to the panel in question that “there are only two penalties that a jury could return, one is life in prison without possibility of release or parole. And that literally means exactly that, a true life in prison without release or parole.” The entire of Juror Z’s voir dire – 12 pages worth – are appended to the opinion.
Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.
The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like. It may also well be the template of what the Court will expect from here forward.