A California jury convicted William Payton of murder, rape, and two counts of attempted murder. During sentencing, the court failed to correctly explain the application of California's Penal Code, section 190.3(k) following the prosecutor's misstatement of the law to the members of the jury instructing them not to consider defendant's post-crime mitigating evidence. The court did instruct the jury that the prosecutor's statements should not be regarded as evidence in the case and that the jury should consider "any other circumstance" as dictated by the California statute. The jury sentenced the defendant to death and the California Supreme Court affirmed. The Ninth Circuit reversed, holding that under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, the California Supreme Court unreasonably applied Federal law. The Supreme Court will decide whether the Ninth Circuit had the authority to reverse the California Supreme Court.
Questions as Framed for the Court by the Parties
In Boyde v. California, 494 U.S. 370 (1990), this Court upheld the constitutionality of California's "catch-all" mitigation instruction in capital cases, which directs a jury to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." The mitigating evidence at issue in Boyde was pre-crime evidence in mitigation. Relying on Boyde, the California Supreme Court held that California's "catch-all" mitigation instruction in this capital case is constitutional as applied to post-crime evidence in mitigation. In a 6-5 decision, the en banc Ninth Circuit held that the California Supreme Court decision was objectively unreasonable "because Boyde does not control this case." The question presented is:
- Did the Ninth Circuit violate 28 U.S.C. § 2254(d) when it found the California Supreme Court objectively unreasonable in holding that California's "catch-all" mitigation instruction in capital cases is constitutional as applied to post-crime evidence in mitigation?
Facts
The Supreme Court's decision in Brown v. Payton may clarify California's standard regarding the mitigating evidence a jury may consider during the penalty phase of a capital trial. In 1978, California voters approved California Penal Code §190.3, which mandates that a jury impose a death sentence when they find that evidence of mitigation is outweighed by the aggravating circumstances of the crime. The statute provides eleven factors for jurors to consider, including factor "k," a catch-all provision that allows jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Id. That same year, the Supreme Court ruled that in capital cases, the Eighth and Fourteenth Amendments require juries to consider all mitigating evidence proffered by the defendant with respect to the defendant's character and record or circumstances of the crime. Lockett v. Ohio, 438 U.S. 586, 604 (1978). If the Court's decision reaches the merits, it will likely clarify whether the California courts must specifically instruct the jury as to the categories of mitigating evidence, e.g., post-crime mitigating evidence, they may consider in the penalty phase of a trial.
The Supreme Court's ruling will not only address California's application of factor "k," but also the circumstances under which it is appropriate for federal courts to interfere with state court capital punishment decisions. According to the Antiterrorism and Effective Death Penalty Act of 1996, which "significantly limited the power of the federal bench to grant a state prisoner's petition for habeas corpus," Payton, 346 F.3d at 1219, the Ninth Circuit can only reverse a California state court decision on a finding that the decision was, "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Citing several federal cases (e.g., Lockett, 438 U.S. at 606; Penry v. Lynaugh, 492 U.S. 302, 317 (1989)), the Ninth Circuit held that the "Supreme Court precedent in force at the time the California Supreme Court decided Payton's factor "k" arguments required that all potentially relevant mitigating evidence—pre-crime and post-crime—be available to the sentencer in a capital case." Payton, 346 F.3d at 1210.
In the balance between abdicating to the states and reversing erroneous judgments, the Supreme Court has frequently corrected the Ninth Circuit's lack of deference to state courts. "[T]he Supreme Court has said several times—unanimously—in little more than a year that the 9th Circuit is on the wrong side of [the federalism] line." Jason Hoppin, "The Recorder," (October 2003). According to Cornell Law School Professor Steven Garvey, "there is a strong probability that the [Supreme] Court will discipline the Ninth Circuit again in this case." Alternatively, he points out that the Lockett precedent implicated in Boyde v. California, 494 U.S. 370 (1990) (focusing on factor "k") and the instant case is a well established principle that the Court has defended in the past. Garvey concludes, "The Court is reluctant to make any inroad to the principle that a defendant should have every opportunity to present mitigating evidence when facing the possibility of the death penalty." Here, the Court is likely clarify the role of the AEDPA, which will affect all federal courts deciding state habeas corpus petitions.
According to Garvey, another possible consequence of the Supreme Court's decision is that "prosecutors may not be able to make comments [regarding their interpretation of statutory provisions], or the California legislature will have to modify the language of the statute to make it clear." The prosecutor's potentially misleading description of California's factor "k" in his closing argument was one of the pivotal arguments for habeas corpus relief. Had the prosecutor not stated that post-crime evidence does not fall within factor "k," this case may never have reached the Supreme Court. Thus, there is some possibility that the Court will discuss the bounds of prosecutorial misconduct, which infringements the courts must correct, and which attorney statements can be considered merely argument.
Finally, death penalty proponents should be interested in Brown v. Payton because, if affirmed, it gives federal courts more power to reverse state court death sentences. Such proponents, no doubt, will want to confine Boyde to its facts. Proponents will also likely oppose giving any weight in deliberations to post-crime character change allegations. They will argue that any convicted criminal will simply take farce mitigating actions in hopes of convincing a jury to be merciful. On the other hand, opponents of the death penalty will want the broader reading of Boyde to apply; i.e., that factor "k" includes all mitigating evidence, whether crime-related or post-crime. Id. Moreover, should the Court reverse the Ninth Circuit, criminal defendants will have more of an incentive to take corrective actions in their lives or to try to ameliorate the harm that they caused.
Analysis
A writ of habeas corpus "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless . . . [the] decision[]was contrary to . . . clearly established Federal law . . . or . . . was based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d) (as amended by the Antiterrorism and Effective Death Penalty Act of 1996). The amended This provision unquestionably applies to Brown v. Payton because the Supreme Court remanded Payton's habeas case to the appellate court for reconsideration in light of Woodford v. Garceau, 538 U.S. 202 (2003). In Woodford the Supreme Court held that the Antiterrorism and Effective Death Penalty Act of 1996 does apply to a prisoner's habeas corpus application.
Here, the claims that form the basis of Payton's writ of habeas corpus were adjudicated on the merits in a state court proceeding. Thus, for the appellate court to grant a writ of habeas corpus in this case, the state court's decision must be either contrary to clearly established federal law or based on an unreasonable determination of the facts. Payton does not seriously contend, nor did the Ninth Circuit decide, that there was an unreasonable determination of the facts. Therefore, the crux of the issue is whether the outcome of Payton's trial, specifically the penalty phase, was contrary to clearly established federal law.
The federal law in question in Brown v. Payton pertains to California's Penal Code, section 190.3. The code contains eleven subsections describing categories of evidence that should be considered by the jury in mitigation of the sentence during the penalty phase of a capital trial, including the "catch-all" factor "k": "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." In Boyde v. California, 494 U.S. 370 (1990), the Supreme Court held that factor "k" constitutionally includes pre-crime evidence in mitigation, thus further instruction to the jury regarding such evidence is unnecessary. Boyde is certainly "clearly established Federal law" as it pertains to pre-crime evidence. Payton contends, and the Ninth Circuit Court of Appeals agreed, that the holding in Boyde does not encompass the post-crime mitigation evidence the defense offered at trial, and thus, special instructions to the jury regarding such evidence were necessary. Payton asserts that the state court decision to reject habeas corpus relief following potentially misleading statements about the interpretation of factor "k" at the sentencing stage of his trial was not required by established federal law, i.e., Boyde. This opens the door for the Ninth Circuit to interpret existing federal law to require that factor "k" must be supplemented with an explanation beyond the plain language of the text when a defendant introduces post-crime mitigation evidence. Followed to its logical conclusion, this justifies reversal of the state court's denial of habeas relief as contrary to "clearly established Federal law."
Thus, the two principal issues in analyzing Payton's argument that the state court decision is contrary to, or at least not required by, federal law, are: whether the Federal law in question, i.e., Boyde, even applies to this case (a procedural approach) and whether allowing the misinformation at trial was contrary to Boyde (a merits-based approach).
The Supreme Court must address the scope of Boyde because that holding does not explicitly address post-crime mitigation evidence. Interpreted broadly, Boyde may be read to address all mitigation evidence at trial, but if construed narrowly it applies only to pre-crime mitigating evidence. The California Supreme Court based its denial of Payton's writ on Boyde, but the Ninth Circuit maintained (twice) that Boyde is not controlling on these facts. The Supreme Court will likely disagree, because if Boyde was not controlling, then there was no clear federal law on point prior to this case and the Supreme Court would likely not have remanded the case to be determined in light of Woodford (i.e. in light of the amended 28 U.S.C. § 2254(d)). Furthermore, the potential impairment of a defendant's right to present pre-crime evidence to the jury, as in Boyde, seems to be a more compelling argument for habeas relief than a similar post-crime impairment, such as that in Payton. If applying Boyde's factor "k" interpretation to a more compelling case is fair to the defendant, then it should logically follow that applying the same factor "k" interpretation to the less compelling case would also be fair to the defendant.
The State contends that the denial of Payton's habeas petition was not contrary to federal law even if Boyde controls the case. To deny habeas, the state court must have found that the jury was not "reasonabl[y] likel[y]" to have been swayed by misinformation at trial; the mere possibility that the jury could have been swayed is not enough. See Boyde, 494 U.S. at 371. During his closing statements at trial, the prosecutor told the jury that factor "k" does not include post-crime evidence. Payton, 346 F.3d at 1208-9. If Boyde controls this case, the prosecutor's interpretation of the statute was erroneous. However, the court instructed the jury that the prosecutor was not giving impartial statements of the law, and the defense attorney made a correct statement of the law during his summation. If the Supreme Court reaches the merits of the case, it will likely hold that the state court's denial of Payton's writ of habeas corpus was not contrary to Boyde, particularly because, in determining whether habeas corpus relief was warranted, the state court explicitly referred to the "reasonable likelihood" standard established in Boyde for determining whether the jury misapplied an instruction.
Although the Supreme Court will likely reverse the Ninth Circuit's decision, there are some compelling reasons on the basis of which the Supreme Court could affirm the ruling. The Court could confine Boyde's precedental power to its facts, determine that there is no controlling federal law, and hold that the Ninth Circuit was authorized to shape the law with its holding in this case. Alternatively, the Court could identify controlling law other than Boyde that supports the Ninth Circuit's decision, effectively concluding that the California Supreme Court decided the case in opposition to existing federal law and the Ninth Circuit was correcting the error. Even if Boyde does control this case the Court could affirm by finding that the jury was likely to have been misled by the state court's failure to clearly instruct the jury on the application of factor "k" to post-crime mitigation evidence. The Supreme Court has long dedicated itself to giving defendants in capital cases every opportunity to avoid the death penalty/ Lockett v. Ohio, 438 U.S. 586 (1978). Consider, for instance, the Supreme Court's statements in O'Neal v. McAninch, 513 U.S. 432 (1995) at 433: "[T]he number of acquittals wrongly caused by grant of the writ and delayed retrial . . . will be small when compared with the number of persons whom [denying the writ] would wrongly imprison or execute. On balance, we must doubt that the law of habeas corpus would hold many people in prison ‘in violation of the Constitution,' for fear that otherwise a smaller number, not so held, may eventually go free." If the jury was misled by misinformation at trial, Payton's 8th Amendment right to avoid cruel and unusual punishment might have been impaired.
Conclusion
In conclusion, whether on the merits or on procedural grounds, it is likely that the Supreme Court will reverse the Ninth Circuit's decision and disallow a writ of habeas corpus for Payton because the claim was adjudicated on the merits in state court and was not contrary to established federal law. The Supreme Court, however, could utilize this opportunity to take a strong stance for defendant rights in capital cases and affirm the Ninth Circuit's decision and require new penalty-phase proceedings for Payton.