For those of you who bought "Garland's My Guy" t-shirts as a way of showing support for beleaguered Supreme Court nominee Merrick Garland, you can put them away. Garland's nomination expired last Tuesday, the final day of the 114th Congress. Attention has now turned to the possible picks by Twitterer-in-Chief Donald Trump, with William Pryor, currently a judge on the 11th Circuit, gaining most prominent mention. During Clarence Thomas' confirmation hearings, he professed never to have even discussed Roe v. Wade, which, if true, made him the only person in the country who hadn't done so. Pryor will not be able to so deftly avoid that question: he's labeled Roe "the worst abomination in the history of constitutional law," and said the he "will never forget January 22, 1973, the day seven members of our highest court ripped up the Constitution."
Besides one present Supreme Court vacancy and three justices in their late 70's or 80's, there are 114 vacancies in the Federal courts which Trump will have to fill. Whatever hope there was that his presidency would be a more moderate one than might be expected from a Republican has been dashed by his cabinet picks, and I'm guessing he'll be perfectly happy to turn over the nasty business of picking judges to the Federalist Society and the Family Research Council. We live in interesting times.
The Court kicked off its January Calendar Monday with oral argument in Nelson v. Colorado. Nelson was convicted of a crime. Her conviction was reversed on appeal, she was retried, and acquitted. She sought to recover the $702.10 she'd paid the State in fines, costs, and restitution that had been imposed upon her conviction. The state court held that state law required Nelson to prove her actual innocence before she was entitled to a refund. The Supreme Court will decide whether that's a violation of due process.
What caught my eye was the statement in the petition for certiorari that Colorado is alone in requiring something more than reversal to obtain a refund. I've gotten convictions reversed, but I have no idea what procedure a defendant would use to get his money back. Show up at the clerk's office with a copy of the opinion? I'll have to check into it.
We're talked out on Ohio Supreme Court decisions, but there's one appellate decision that's probably headed there, so let's talk about that.
A year ago, the US Supreme Court nullified Florida's capital punishment procedure in Hurst v. Florida. Hurst was convicted of capital murder, and the jury recommended a death sentence, which the judge imposed. (Rinse, repeat: he was granted a new sentencing hearing in his first appeal, and the jury sentenced him to death again.)
But there was a quirk in Florida law: while the jury could recommend a particular sentence, that wasn't binding on the judge; in fact, death couldn't be imposed unless the judge held a separate hearing to determine whether "aggravating circumstances" were sufficient to justify it. The Supreme Court determined that this violated the Ring/Apprendi/Blakely trilogy, which upheld the simple truth that juries determine facts, not judges. Here, the jury made only a recommendation: it was the judge who had to make the findings on the aggravating circumstances, and thus actually determined whether the defendant got the needle.
And so we come to State v. Mason, which was both the most surprising decision and least surprising decision of the past year.
Mason was sentenced to death for raping and killing a woman back in 1993, but a Federal court granted habeas relief on his death sentence. While they were waiting for Round 2 on the sentencing, the Supreme Court decided Hurst. So Mason argued the he couldn't get the death penalty, because the Ohio procedure was unconstitutional under Hurst.
And the trial court bought it; in June, it dismissed the death penalty specification.
Well, that got everybody's attention, and order was restored when, as anticipated, the 3rd District reversed the decision the week after Christmas, accusing the trial judge of "going rogue."
The big issue is when a defendant becomes eligible for the death penalty or, more precisely, who determines that. Mason had a clever argument: under Ohio's scheme, once the jury recommended death, in order to impose that sentence, the judge had to make a finding that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.
There's some merit to that contention; it's the judge making the final decision on death, not the jury. The appellate court wasn't buying it, though, and I doubt the Supreme Court will, either. As the panel noted, there are substantial differences between Florida's law and Ohio's. In Ohio, the jury does make the determination that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. In Florida, the jury renders only an "advisory" sentence of life or death, without specifying any factual basis. It's the judge who makes the findings, and that's going to fall well short of the requirements of Ring/Apprendi/Blakely.
Two more big differences: Ohio requires a unanimous jury for a death sentence. Florida doesn't; the vote on Hurst was 7-5. Second, in Ohio the judge can't override a jury's recommendation of a life sentence. (She can override the jury's recommendation of death and impose life, as a judge here did last month.)
But there is one similarity that's overlooked: in both states, the jury merely makes a recommendation for a death sentence; it's the judge who has the final say. Scala made an interesting point in oral argument: this procedure allows the jury absolve itself of the moral responsibility for its decision.
The Colorado method of defending death penalty cases has been sweeping the nation. (Google it; I guarantee you're not going to get articles on a birth control practice.) Its entire basis is that imposing a death sentence is a moral judgment. The unspoken premise is that the talk about aggravating circumstances and mitigating factors is so much chin music: the question is whether this guy deserves to die, and that's something you know in your gut.
And when the judge tells you (it's part of the jury instructions) that if you decide to sentence the defendant to death, you're really not sentencing him to death, you're just "recommending" it, the moral magnitude of your decision is reduced.