Amicus Curiae Brief — Lance Shockley, Petitioner v. Cindy Griffith, Warden

Supreme Court briefMay 24, 2018

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No. 17-8599

IN THE

Supreme Court of the United States

————

LANCE SHOCKLEY,

Petitioner,

CINDY GRIFFITH, WARDEN,

POTOSI CORRECTIONAL CENTER,

Respondent.

————

On Petition for Writ of Certiorari to the

Supreme Court of Missouri

————

BRIEF OF AMICI CURIAE RETIRED MISSOURI

JUDGES AND JURISTS IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

————

ARDITH BRONSON

MAIA SEVILLA-SHARON

DLA PIPER LLP (US)

200 S. Biscayne Blvd.

Suite 2500

Miami, FL 33131-5341

(305) 423-8500

ardith.bronson@

dlapiper.com

PAUL D. SCHMITT

DLA PIPER LLP (US)

500 Eighth Street, NW

Washington, DC 20004

(202) 799-4000

ILANA H. EISENSTEIN

Counsel of Record

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 4900

Philadelphia, PA 19103-7300

(215) 656-3300

ilana.eisenstein@

dlapiper.com

ETHAN H. TOWNSEND

DLA PIPER LLP (US)

1201 N. Market Street

Suite 2100

Wilmington, DE 19801

(302) 468-5700

Counsel for Amici Curiae

May 24, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTERESTS OF AMICI CURIAE ......................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

THE COURT SHOULD GRANT REVIEW OF

THIS CAPITAL CASE TO ADDRESS THE

FEDERAL CONSTITUTIONAL ARGUMENTS

PRESENTED BY MISSOURI’S UNJUST

AND UNLAWFUL JUDICIAL OVERRIDE

SCHEME IN DEATH PENALTY CASES ..........

I. Judicial Capital Sentencing Skews

Sentencing Outcomes ...............................

II. Judicial Capital Sentencing Contravenes

the Concept of Trial By Jury ....................

III. Judicial Capital Sentencing Violates the

Eighth and Fourteenth Amendments ......

A. Missouri’s

Capital

Sentencing

Scheme Impermissibly Allows a

Judge and Not the Jury to Make

Sentencing Determinations ................

B. Judicial Imposition of the Death

Penalty Is Rare and It Constitutes

Cruel and Unusual Punishment .........

CONCLUSION ....................................................

APPENDIX

Missouri Capital Cases Involving Potential

Death Sentence, 1998 – Present .....................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Andres v. United States,

333 U.S. 740 (1948) ...................................

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................. 10, 11, 12

Beck v. Alabama,

447 U.S. 625 (1980) ...................................

Blakely v. Washington,

542 U.S. 296 (2004) ................................... 8, 11

Furman v. Georgia,

408 U.S. 238 (1972) ................................... 9, 16

Gardner v. Florida,

430 U.S. 349 (1977) ................................... 15, 16

Graham v. Florida,

560 U.S. 48 (2010) .....................................

Gregg v. Georgia,

428 U.S. 153 (1976) ...................................

Harris v. Alabama,

513 U.S. 504 (1995) ................................... 4, 16

Hurst v. Florida,

136 S. Ct. 616 (2016) ................................passim

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ..........................

Rauf v. State,

145 A.3d 430 (Del. 2016)......................... 7, 8, 15

Republican Party of Minnesota v. White,

536 U.S. 765 (2002) ...................................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Ring v. Arizona,

536 U.S. 584 (2002) ..................................passim

Roberts v. Louisiana,

428 U.S. 325 (1976) ...................................

Woodson v. North Carolina,

428 U.S. 280 (1976) ..................................... 9, 13

Woodward v. Alabama,

571 U.S. 1045 (2013) ................................. 16, 19

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. XIII. ............................passim

U.S. Const. Amend. XIV ...............................

U.S. Const. Amend. VI ................................passim

STATUTES

Mo. Rev. Stat. § 565.030.4............................ 6, 13

Neb. Rev. Stat. §§ 29-2520 – 29-2522 ..........

RULES

Missouri Supreme Court Rule 29.08(c) .......

OTHER AUTHORITIES

ABA Resolution 108A (2015) .......................

Adriaan Lanni, Jury Sentencing in

Noncapital Cases: An Idea Whose Time

Has Come (Again)?, 108 Yale L.J. 1775

(1999) .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Fred B. Burnside, Comment, Dying to Get

Elected: A Challenge to the Jury

Override, 1999 Wis. L. Rev. 1017 (1999) ..

James Wilson, Lectures of James Wilson, in

2 Collected Works Of James Wilson

1008–09 (Kermit L. Hall & Mark David

Hall, eds., 2007) ........................................

Michael L. Radelet and Michael Mello,

Death–to–Life Overrides: Saving the

Resources of the Florida Supreme Court,

20 Fla. St. U. L. Rev. 195 (1992) ..............

Stephen B. Bright & Patrick J. Keenan,

Judges and the Politics of Death:

Deciding Between the Bill of Rights and

the Next Election in Capital Cases, 75

B.U. L. Rev. 759 (1995) .............................

Valerie P. Hans, et al., The Death Penalty:

Should the Judge or the Jury Decide Who

Dies?, Cornell Law School Legal Studies

Research Paper Series 15 (2014) ..............

4 W. Blackstone, Commentaries on the

Laws of England (Rees Welch & Co. ed.

1898) .......................................................... 11, 14

INTERESTS OF AMICI CURIAE1

The issue before the Court is the constitutionality of

Missouri’s death penalty procedure under the Sixth,

Eighth, and Fourteenth Amendments. Specifically,

the Missouri sentencing scheme permits a trial judge

to render a death sentence when a jury is deadlocked

on that issue, i.e., when the jury has not unanimously

and independently made an affirmative determination

that a death sentence is warranted. Amici are retired

judges and jurists who have served at all levels of the

Missouri judicial system. They include trial judges

who have presided over capital cases, and a Justice of

the Missouri Supreme Court. They have dedicated

themselves to public service, devoting time, effort, and

in some instances their entire legal careers to the

pursuit of justice in Missouri’s judicial system. They

therefore have particular interest and expertise in the

legal and practical ramifications of the Missouri

sentencing scheme at issue here.

Former Chief Justice Michael A. Wolff was a justice

on the Missouri Supreme Court from 1988-2011 and

Chief Justice from 2005-2007.

Former Judge Charles Atwell was a judge on the

16th Judicial Circuit Court of Missouri from 19962012.

Former Judge Jon R. Gary was a judge on the 16th

Judicial Circuit Court of Missouri from 1987-2007.

Pursuant to Supreme Court Rules 37.3(a) and 37.6, Amici

Curiae certify that no counsel for a party authored this brief in

whole or in part, and no such counsel or party made a monetary

contribution intended to fund the preparation or submission of

the brief, and that the parties have consented to the filing of this

brief.

Former Judge John R. O’Malley was a judge on the

16th Judicial Circuit Court of Missouri from 19892009.

Former Judge Gary Oxenhandler was a judge on the

13th Judicial Circuit Court of Missouri from 20022016.

Former Judge David W. Russell was a judge on the

7th Judicial Circuit Court of Missouri from 1989-2004.

Former Judge Robert Schieber was a judge on the

16th Judicial Circuit Court of Missouri from 20062017.

SUMMARY OF ARGUMENT

Petitioner Lance Shockley was sentenced to death

in 2009 under Missouri’s capital sentencing scheme.

Missouri law permits a trial judge to make

independent factual findings (both as to aggravating

and mitigating factors) and to impose a sentence of

death when a jury deadlocks on whether the death

penalty is warranted. Missouri’s capital sentencing

procedure essentially takes a life or death decision out

of a jury’s purview when the jury is unable to vote

unanimously in favor of a death sentence, and places

that awesome power in the hands of one individual.

That is precisely what happened in Mr. Shockley’s

case. Such a system promotes disparity in sentencing

outcomes, raises the specter of arbitrary results,

undermines the Sixth Amendment’s jury trial

guarantees, and constitutes a form of cruel and

unusual punishment under the Eighth Amendment,

as applied to the states through the Fourteenth

Amendment.

Mr. Shockley has been denied relief by the Missouri

Supreme Court, and it now falls to this Court to

provide a proper review of the constitutional issues at

stake. The Court’s review is necessary because the

issues presented by the Petition are of substantial

importance to the administration of justice. Without

immediate review, Mr. Shockley, and those sentenced

under Missouri’s and other similarly unconstitutional

schemes, will be subjected to the possibility of

suffering the gravest penalty in our criminal justice

system. The risk of significant and irreversible

injustices in the administration of those sentences is

high, given the inherently problematic nature of a

death sentence being imposed by a single person – and

particularly after a jury did not unanimously do so.

In short, the Petition’s constitutional arguments are

compelling and urgent. Amici are concerned that the

failure to grant relief now will result in the same

irreparable injustices that many of them have lived

through during their recent decades on the Missouri

bench.

Amici urge this Court to prevent such

injustices from needlessly recurring.

ARGUMENT

THE COURT SHOULD GRANT REVIEW OF

THIS CAPITAL CASE TO ADDRESS THE

FEDERAL CONSTITUTIONAL ARGUMENTS

PRESENTED BY MISSOURI’S UNJUST AND

UNLAWFUL JUDICIAL OVERRIDE SCHEME IN

DEATH PENALTY CASES.

I. Judicial

Capital

Sentencing

Sentencing Outcomes.

Skews

This Court’s review is necessary because judiciallyimposed death sentences like Mr. Shockley’s are

unjust and unlawful in several ways. First, judicial

sentencing historically has been more likely to result

in a death sentence in a capital case than when a jury

makes that decision, particularly in jurisdictions

where trial judges are elected, as is overwhelmingly

the case in Missouri. This is not a new revelation. As

Justice Stevens noted over twenty years ago, it “has

long been the case” that “[n]ot surprisingly, given the

political pressures they face, judges are far more likely

than juries to impose the death penalty.” Harris v.

Alabama, 513 U.S. 504, 521 (1995) (Stevens, J.,

dissenting). At the time, there was already significant

evidence in support of Justice Stevens’ observation.

See ibid. (noting that “Alabama judges have vetoed

only five jury recommendations of death, but they

have condemned 47 defendants whom juries would

have spared.”); Michael L. Radelet and Michael Mello,

Death–to–Life Overrides: Saving the Resources of the

Florida Supreme Court, 20 Fla. St. U. L. Rev. 195, 196,

210-211 (1992) (demonstrating that, from 1972 to

1992, Florida state judges overrode 134 jury-imposed

life sentences to impose a death sentence, while

overriding only 51 jury-recommended death sentences

to impose a life sentence); see also Stephen B. Bright

& Patrick J. Keenan, Judges and the Politics of Death:

Deciding Between the Bill of Rights and the Next

Election in Capital Cases, 75 B.U. L. Rev. 759, 793-794

(1995) (demonstrating higher likelihood of judicial

override of jury-recommended life sentences in

jurisdictions in Alabama, Florida and Indiana where

judges face elections); Republican Party of Minnesota

v. White, 536 U.S. 765, 789 (2002) (O’Connor, J.,

concurring) (“Elected judges cannot help being aware

that if the public is not satisfied with the outcome of a

particular case, it could hurt their reelection

prospects.”).

Over the past twenty years, that trend has continued. For example, a recent study of Delaware’s capital

sentencing system, relying on statistics gathered

before Delaware abolished judicial imposition of death

sentences, showed that “whether a case resulted in a

death sentence was strongly influenced by whether

the punishment was decided” by a judge or jury, and

“[j]udges were significantly more likely to give a

defendant the death sentence than were juries.”

Valerie P. Hans, et al., The Death Penalty: Should the

Judge or the Jury Decide Who Dies?, Cornell Law

School Legal Studies Research Paper Series 15 (2014).

When Delaware had a solely jury-determined death

sentencing scheme, only 11 of 57 capital defendants

(less than 20%) received death sentences, while during

the judge-determined capital sentencing era, 31 of 58

capital defendants (53%) received death sentences.

Ibid. Even during the era when Delaware had a

hybrid sentencing scheme in which the jury rendered

an advisory sentence and the trial judge rendered the

final determination as to whether a death sentence

was warranted, the frequency of imposition of a death

sentence was significantly higher than when the jury

had sole responsibility: in the hybrid system, 39% of

capital sentences resulted in the death penalty. Id.

at 8, 15. Data from other states reflect a similar

phenomenon. See, e.g., Fred B. Burnside, Comment,

Dying to Get Elected: A Challenge to the Jury Override,

1999 Wis. L. Rev. 1017, 1039-1044 (1999) (examining

frequency of jury override by elected judges in

Alabama, Florida, and Indiana).

Statistics drawn from judicial records demonstrate

that the same is true in Missouri, where the

overwhelming majority of counties elect trial judges.

In the Missouri state court system, at the conclusion

of cases in which there is a conviction for a capital

crime, the trial judge is required to file a report with

the Missouri Supreme Court within 10 days after the

imposition of sentence. See Missouri Supreme Court

Rule 29.08(c). A review of capital cases, relying largely

on available trial reports from the past twenty years,

indicates that judges are more likely to impose a death

sentence than a jury.2 The statistics are stark: during

the relevant period, there were 133 capital crimes

prosecuted before a jury in the first instance, where

the death penalty was not waived by a prosecutor. See

App. at 1a-8a. Of those crimes prosecuted, a jury made

These cases are summarized in the Appendix attached hereto.

October 31, 1984, is when Missouri’s current scheme permitting

judges to break jury deadlock in capital cases took effect. See Mo.

Rev. Stat. § 565.030.4.

an affirmative finding as to a life sentence or a death

sentence in 121 cases – i.e., there was no jury deadlock.

Id. at 8a. Of those cases where there was no jury

deadlock, the jury imposed a death sentence in 83 of

them – i.e., 68.6% percent of cases. Ibid. In contrast,

judges imposed death sentences at a far higher rate.

In cases where there was jury deadlock and the

determination as to the sentence was left to the trial

judge, the death penalty was imposed for 11 of 12

capital crimes, or 91.6 percent. Ibid. A sentencing

scheme riddled with such disparity in outcomes cannot

pass constitutional muster.

As Justices Breyer and Stevens have warned, “the

danger of unwarranted imposition of the penalty

cannot be avoided unless ‘the decision to impose the

death penalty is made by a jury rather than by a single

governmental official.’” Ring v. Arizona, 536 U.S.

584, 618-619 (2002) (Breyer, J., concurring in the

judgment) (quoting Spaziano v. Florida, 468 U.S.

447, 469 (1984) (Stevens, J., concurring in part and

dissenting in part)). That is because a sentencing

scheme such as Missouri’s places the maximal power

of the state – the ability to take a human life – in the

hands of just one person. No individual, not even a

judge, should have that authority.

II. Judicial Sentencing Contravenes

Concept of Trial By Jury.

the

From a historic perspective, judicial sentencing in a

capital case contravenes both the founding fathers’

vision and citizens’ expectations of a jury trial. As

the Delaware Supreme Court found in Rauf v. State,

145 A.3d 430, 435-436, 460 (Del. 2016) (Strine, C.J.,

concurring, joined by Holland and Seitz, JJ.), it is

illogical to require the jury to make all the necessary

factual findings leading up to the imposition of

sentence, including the aggravating and mitigating

factors, but then not to require the jury to make the

ultimate decision itself. No criminal defendant or

member of the community would think that “jury

sentencing” means that a jury will decide certain

factors but not the actual sentence itself. Jury

sentencing is meaningless if it does not include the

actual life or death decision.

When the Sixth Amendment was adopted, it was

understood that juries were responsible for deciding

whether a defendant would be sentenced to death:

[T]he English jury’s role in determining

critical facts in homicide cases was

entrenched. As fact-finder, the jury had the

power to determine not only whether the

defendant was guilty of homicide but also the

degree of the offense. Moreover, the jury’s role

in finding facts that would determine a

homicide defendant’s eligibility for capital

punishment was particularly well established

* * * * By the time the Bill of Rights was

adopted, the jury’s right to make these

determinations was unquestioned.

Ring, 536 U.S. at 599; see also Blakely v. Washington,

542 U.S. 296, 308 (2004) (“[T]he very reason the

Framers put a jury-trial guarantee in the Constitution

is that they were unwilling to trust government to

mark out the role of the jury.”). Indeed, “[f]rom the

beginning of our nation’s history, the jury’s role as the

sentencer in capital cases was unquestioned.” Rauf,

145 A.3d at 438. That conclusion flowed naturally

from the fact that most crimes at the founding were

punishable by death. The jury knew this penalty and

knew that its determination of guilt, unanimously and

beyond a reasonable doubt, was tantamount to

sentencing the defendant to death. See Woodson v.

North Carolina, 428 U.S. 280, 293 (1976); see also

Roberts v. Louisiana, 428 U.S. 325, 360 (1976) (White,

J., dissenting joined by Blackmun and Rehnquist, JJ.);

Furman v. Georgia, 408 U.S. 238, 298 (1972)

(Brennan, J., concurring).

That is why, as scholars have explained, the framers

would have known that capital sentences were a

“responsibility traditionally left to juries,” Adriaan

Lanni, Jury Sentencing in Noncapital Cases: An

Idea Whose Time Has Come (Again)?, 108 Yale L.J.

1775, 1800 (1999), because a single person (e.g., the

monarch) should not decide the fate of man, but rather

the community determines whether a “fellow citizen

shall live or die,” James Wilson, Lectures of James

Wilson, in 2 Collected Works Of James Wilson 1008–

1009 (Kermit L. Hall & Mark David Hall, eds., 2007).

Divesting the jury of its critical role in determining the

fate of a defendant and placing that determination in

the hands of a single decision maker is little more

than allowing a king to pass judgment and wield the

sword – a concept that is anathema to the founders

and the rights and liberties that form the bedrock of

our country.

Yet, Missouri’s sentencing scheme does just that.

If the jury – the community – cannot come to a

unanimous conclusion as to whether a defendant

should live or die for his crimes, the judge gets to make

the life or death decision. In so doing, the judge makes

his or her own findings and is free to reject, as the

judge often does, the will of the majority of the jury.

That process runs squarely against the fundamental

principles of our justice system.

III. Judicial Capital Sentencing Violates the

Eighth and Fourteenth Amendments.

A. Missouri’s Capital Sentencing Scheme

Impermissibly Allows a Judge and

Not the Jury to Make Sentencing

Determinations.

Although the petition for a writ of certiorari

addresses how Missouri does an end-run around Ring

v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida,

136 S. Ct. 616 (2016), amici believe that it bears

repeating. Once the jury deadlocks in Missouri, the

judge takes on the central role. Any death sentence

after deadlock is truly based on the judge’s factfinding. No death sentence would be possible without

the judge’s independent findings. The record does not

show that the judge made the same findings as to nonstatutory aggravating evidence or statutory and nonstatutory mitigating evidence. In addition, the record

does not show what the jury actually found at the

weighing step, just what it did not find. The Sixth

Amendment requires that a jury, not a judge, be

the final arbiter of the death penalty. This result

follows from this Court’s decisions, including Hurst.

Accordingly, Missouri trial judges’ role in overriding

the jury’s determination is constitutionally infirm.

The Sixth Amendment to the U.S. Constitution

guarantees a criminal defendant the right to a

jury trial. See U.S. Const. Amend. VI. The Sixth

Amendment also requires that a jury unanimously

determine beyond a reasonable doubt every factual

finding necessary to increase the maximum sentence

imposed on a defendant. In Apprendi v. New Jersey,

530 U.S. 466, 469 (2000), this Court held that “a

factual determination authorizing an increase in the

maximum prison sentence * * * [must] be made by a

jury on the basis of proof beyond a reasonable doubt.”

And it is “unconstitutional for a legislature to remove

from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal

defendant is exposed. It is equally clear that such

facts must be established by proof beyond a reasonable

doubt.” Id. at 490 (quoting Jones v. United States, 526

U.S. 227, 252-53 (1999) (Stevens, J., concurring)). The

Court explained that the constitutional right to a jury

trial is rooted in the historical requirement that all

factual determinations in a criminal case must be

made by a jury because “the truth of every accusation,

whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by

the unanimous suffrage of twelve of [the defendant’s]

equals and neighbours.” Id. at 477 (quoting 4 W.

Blackstone, Commentaries on the Laws of England

343 (1769)); see also Blakely, 542 U.S. at 305-06

(“[The jury trial right] is * * * a fundamental

reservation of power in our constitutional structure.

Just as suffrage ensures the people’s ultimate control

in the legislative and executive branches, jury trial is

meant to ensure their control in the judiciary.”).

“Equally well founded is the companion right to have

the jury verdict based on proof beyond a reasonable

doubt.” Apprendi, 530 U.S. at 478.

In Ring, 536 U.S. 584 (2002), this Court specifically

addressed Apprendi’s application to the death penalty.

The Court noted that “the Sixth Amendment does not

permit a defendant to be ‘expose[d] to a penalty

exceeding the maximum he would receive if punished

according to the facts reflected in the jury verdict

alone.’ ” Id. at 588-589 (quoting Apprendi, 530 U.S. at

483). In that case, under Arizona law, the defendant

“could not be sentenced to death * * * unless further

findings were made.” Id. at 591. As the Court

explained, Arizona’s law permitted the judge alone

to determine whether to “sentence the defendant

to death.” Id. at 593. “At the conclusion of the

sentencing hearing, the judge is to determine the

presence or absence of the enumerated ‘aggravating

circumstances’ and any ‘mitigating circumstances.’ ”

Id. at 591. Following Apprendi’s reasoning, the Court

ruled that the Arizona death penalty statute was

unconstitutional because the judge (not the jury) was

responsible for increasing the punishment from life in

prison to the death penalty. The Court held that,

under the Sixth Amendment, “[c]apital defendants

* * * are entitled to a jury determination of any fact

on which the legislature conditions an increase in their

maximum punishment.” Id. at 589.

In Hurst, this Court reaffirmed the importance

of the jury’s decisionmaking in capital sentencing.

In that case, the Court concluded that the Sixth

Amendment requires “a jury to find every fact

necessary to render [a defendant] eligible for the

death penalty.” Hurst, 136 S. Ct. at 622. The Court

reaffirmed that “[t]he Sixth Amendment protects a

defendant’s right to an impartial jury. This right

required Florida to base Timothy Hurst’s death

sentence on a jury’s verdict, not a judge’s factfinding.”

Id. at 624.

And “[a]s with Timothy Ring, the

maximum punishment Timothy Hurst could have

received without any judge-made findings was life in

prison without parole. As with Ring, a judge increased

Hurst’s authorized punishment based on her own

factfinding.” Id. at 622. The Court accordingly struck

down the Florida sentencing scheme. The same result

is required here.

There is simply no meaningful distinction between

Hurst and Florida’s sentencing scheme thereunder,

and the one employed by Missouri.

Both the

unconstitutional Florida statute and the Missouri

statute permit judges, not juries, to be the final arbiter

of capital punishment, regardless of the jury’s final

determination of the issue. Mo. Rev. St. § 565.030.4

(2000). The Court has long recognized the seemingly

obvious distinction between sentences to death and

sentences to imprisonment. See Woodson, 428 U.S. at

305 (opinion of Stewart, Powell, and Stevens, JJ.)

(“Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one

of only a year or two. Because of that qualitative

difference, there is a corresponding difference in the

need for reliability in the determination that death is

the appropriate punishment in a specific case.”); see

also Beck v. Alabama, 447 U.S. 625, 637-638 (1980)

(“[D]eath is a different kind of punishment from any

other which may be imposed in this country[.] * * *

From the point of view of the defendant, it is different

in both its severity and its finality.”). Because of

this obvious difference, the process of the ultimate

punishment requires there be “reliability in the determination that death is the appropriate punishment.”

Woodson, 428 U.S. at 305.

That is why, in a series of cases culminating with

Hurst, the Court has explained the jury’s role in

capital sentencing is demonstrably different than the

jury’s role in non-capital sentencing schemes. The

jury’s role is not only to find facts that make the

defendant eligible for the death penalty; it must also

determine the aggravating and mitigating factors, and

weigh those aggravating and mitigating factors. The

jury then takes another step and determines whether,

in its view, the defendant should die for his crime.

Under the Missouri scheme, however, the judge is free

to disregard the jury’s determinations if it cannot come

to a unanimous conclusion. It makes little sense to

require a jury to engage in such detailed fact-finding

and balancing of the aggravating and mitigating

factors only to have a judge summarily usurp the

jury’s determination. Such a scheme permits a

complete end-run around the carefully articulated

capital sentencing protections required by the Sixth

and Eighth Amendments and it cannot stand

constitutional scrutiny.

And, if the jury must make a determination of

whether a defendant lives or dies, it must do so

unanimously. The requirement of jury unanimity

is one that, again, was a core principle at the time

of the country’s founding. See 4 W. Blackstone,

Commentaries on the Laws of England, 349-350 (Rees

Welch & Co. ed. 1898) (explaining under English law

that “no man should be called to answer to the king for

any capital crime unless “the truth of every accusation

* * * be confirmed by the unanimous suffrage of twelve

of his equals and neighbours”). The Court has

explained that in “criminal cases” the unanimity

requirement “extends to all issues – character or

degree of the crime, guilt and punishment – which are

left to the jury.” Andres v. United States, 333 U.S. 740,

748 (1948). Accordingly, the reasoning undergirding

Hurst, its plain language, and the historical role of

juries in capital sentencing all demonstrate that it

is the jury, not the court, that must determine whether

a defendant lives or dies, and it must do so

unanimously.

This reading of Hurst and the Sixth Amendment is

not unprecedented. To the contrary, it has been

invoked to strike down capital sentencing statutes in

Florida and Delaware that provide the judge authority

to conclude that the defendant should die, even though

the jury has not reached that conclusion. See Hurst v.

State, 202 So. 3d 40 (Fla. 2016); Rauf, 145 A.3d 430

(Del. 2016). Indeed, as Chief Justice Strine of the

Delaware Supreme Court wrote, “I embrace the notion

that the Sixth Amendment right to a jury extends to

all phases of a death penalty case, and specifically to

the ultimate sentencing determination of whether a

defendant should live or die. Although states may

give judges a role in tempering the harshness of

a jury or in ensuring proportionality, they may not

execute a defendant unless a jury has unanimously

recommended that the defendant should suffer that

fate.” Rauf, 145 A.3d at 437 (Strine, C.J., concurring,

joined by Holland and Seitz, JJ.). More to the point:

“If Hurst means what it says, then the finding required

to be made for the imposition of a death sentence must

not only be made by a jury, it must be made by a

unanimous jury.” Id. at 480.

Missouri’s capital sentencing scheme, which usurps

the jury’s constitutional role in determining whether a

defendant lives or dies, violates the Sixth Amendment.

B. Judicial Imposition of the Death

Penalty Is Rare and It Constitutes

Cruel and Unusual Punishment.

Finally, this Court’s review is necessary because

judicially-imposed capital punishment is so exceedingly and increasingly rare as to constitute cruel and

unusual punishment under the Eighth Amendment.

This Court has repeatedly recognized capital sentencing procedures receive particular constitutional

scrutiny because “death is a different kind of

punishment from any other which may be imposed in

this country.” Gardner v. Florida, 430 U.S. 349, 357

(1977). Consequently, as Justice Sotomayor recently

observed, states are required to “apply special

procedural safeguards to ‘minimize the risk of wholly

arbitrary and capricious action’ in imposing the death

penalty.” Woodward v. Alabama, 571 U.S. 1045 (2013)

(Sotomayor, J., dissenting from denial of certiorari)

(quoting Gregg v. Georgia, 428 U.S. 153, 189, 195

(1976)). Were that not the case, as Justice Breyer has

explained, “the constitutional prohibition against

‘cruel and unusual punishments’ would forbid” use of

the death penalty. Ring, 536 U.S. at 614 (Breyer, J.,

concurring in judgment) (citing Furman v. Georgia,

408 U.S. 238 (1972)).

One of the core procedural safeguards required by

the Eighth Amendment is that juries, not judges,

should be responsible for the decision to impose the

death penalty. Put differently, requiring a jury to

render a capital verdict exclusively and collectively

reduces the possibility of arbitrary verdicts. As this

Court has previously held, “[i]t is of vital importance

to the defendant and to the community that any

decision to impose the death sentence be, and appear

to be, based on reason rather than caprice or emotion.”

Gardner v. Florida, 430 U.S. 349, 357-358 (1977); see

also Gregg v. Georgia, 428 U.S. 153, 188 (1976) (noting

that the death penalty cannot “be imposed under

sentencing procedures that created a substantial risk

that it would be inflicted in an arbitrary and capricious

manner”). For precisely that reason, Justice Breyer

recognized that “the Eighth Amendment requires

individual jurors to make, and to take responsibility

for, a decision to sentence a person to death.” Ring,

536 U.S. at 619 (Breyer, J., concurring in the

judgment); see also Harris, 513 U.S. at 525 (Stevens,

J., dissenting) (“A penalty that fails to reflect

the community’s judgment that death is the

appropriate sentence constitutes cruel and unusual

punishment[.]”).

A ruling that requires a jury to have sole and

exclusive responsibility for the underlying fact-finding,

as well as the ultimate decision to impose a death

sentence, is consistent with this Court’s previous

Eighth Amendment jurisprudence. As this Court has

held, in determining whether a particular punishment

is “cruel and unusual,” “courts must look beyond

historical conceptions to the evolving standards of

decency that mark the progress of a maturing society.”

Graham v. Florida, 560 U.S. 48, 58 (2010) (quoting

Estelle v. Gamble, 429 U.S. 97, 102 (1976)) (internal

quotation marks omitted).

In cases evaluating

whether punishment should be categorically barred as

cruel and unusual in particular circumstances – as

should be the case here for judicially-imposed

capital punishment – this Court “first considers

‘objective indicia of society’s standards, as expressed

in legislative enactments and state practice’ to

determine whether there is a national consensus

against the sentencing practice at issue.” Graham,

560 U.S. at 61 (quoting Roper v. Simmons, 543 U.S.

551, 572 (2005)). This Court then “must determine in

the exercise of its own independent judgment whether

the punishment in question violates the Constitution.”

Ibid. (citing Roper, 543 U.S. at 572).

With regard to “objective indicia of national consensus,” this Court reaffirmed in Graham that the

“clearest and most reliable objective evidence of

contemporary values is the legislation enacted by the

country’s legislatures.” Graham, 560 U.S. at 62

(quoting Atkins v. Virginia, 536 U.S. 304, 312

(2002)). Courts also may look to “[a]ctual sentencing

practices,” which “are an important part of the Court’s

inquiry into consensus.” Ibid. These objective indicia

demonstrate that the overwhelming majority of states

which still allow for the death penalty prohibit the

participation of judges in fact-finding or ultimate

determinations of whether the death penalty is

warranted in a given case. As set forth in the petition,

31 states and the federal government still allow for

imposition of the death penalty in their criminal

sentencing schemes. See Pet. App. at 47a-50a. Of

those 32 jurisdictions, 28 do not permit any role by the

trial judge in the underlying fact-finding or the

ultimate determination as to whether the death

penalty shall be imposed in a given case.3 In other

words, in these 28 jurisdictions, the death penalty may

only be imposed if there is an affirmative verdict from

the jury to that effect. Indeed, of these 28 jurisdictions,

three – Alabama, Delaware, and Florida – have

recently changed their sentencing schemes to prohibit

judge-imposed death sentences.

Accordingly, jurisdictions that permit judges to be

the final death sentence arbiters are extreme outliers

with regard to criminal sentencing procedures. And of

those four, two are readily distinguishable from

Missouri’s sentencing scheme. In Nebraska, a panel

Twenty-three of these jurisdictions require a sentence of life

imprisonment and/or life without parole to be imposed unless the

jury empaneled for the trial unanimously makes the required

factual findings and the determination that the death penalty is

warranted. Those jurisdictions are Arkansas, Colorado, Florida,

Georgia, Idaho, Kansas, Louisiana, Mississippi, New Hampshire,

North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South

Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,

Washington, Wyoming, and the federal government. Pet. App. at

47a-50a. An additional five jurisdictions (Alabama, Arizona,

California, Kentucky, and Nevada) contemplate the possibility of

a subsequent jury or juries being empaneled to address the issue

of the death penalty if the initial jury cannot arrive at a

unanimous decision on the same. Ibid. Only one of these 28

jurisdictions (Alabama) permits a jury to impose a death sentence

without unanimous consent. Pet. App. at 47a.

of three judges must unanimously decide to impose the

death penalty, thus partially mitigating the possibility

of an arbitrary imposition of a capital sentence by a

single judge. See Neb. Rev. Stat. §§ 29-2520 – 29-2522.

Further, although Montana still permits a death

sentence to be rendered by a single judge, an effective

moratorium on the death penalty has been in place in

Montana for over 20 years. See Pet. 15. Therefore,

Missouri and Indiana are the only two remaining

jurisdictions where both current law and practice

permit the death penalty decision to rest in a single

judge’s hands.

In short, as Justice Sotomayor

has previously observed, “the national consensus has

moved towards a capital sentencing scheme in which

the jury is responsible for imposing capital

punishment.”4 Woodward v. Alabama, 571 U.S. 1045

(2013) (Sotomayor, J., dissenting from denial of

certiorari). In light of this overwhelming national

consensus, review is needed to determine whether the

Eighth Amendment’s prohibition of cruel and unusual

punishment should bar the Missouri sentencing

scheme at issue here.

The American Bar Association also has recently recognized

this trend. See ABA Resolution 108A (2015) (urging federal,

state, and territorial governments that impose capital

punishment to require that “(1) Before a court can impose a

sentence of death, a jury must unanimously recommend or vote

to impose that sentence; and (2) The jury in such cases must also

unanimously agree on the existence of any fact that is a

prerequisite for eligibility for the death penalty and on the

specific aggravating factors that have each been proven beyond a

reasonable doubt”).

CONCLUSION

Amici therefore ask this Court to grant the Petition

for Writ of Certiorari.

Respectfully submitted,

ARDITH BRONSON

MAIA SEVILLA-SHARON

DLA PIPER LLP (US)

200 S. Biscayne Blvd.

Suite 2500

Miami, FL 33131-5341

(305) 423-8500

ardith.bronson@

dlapiper.com

PAUL D. SCHMITT

DLA PIPER LLP (US)

500 Eighth Street, NW

Washington, DC 20004

(202) 799-4000

ILANA H. EISENSTEIN

Counsel of Record

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 4900

Philadelphia, PA 19103-7300

(215) 656-3300

ilana.eisenstein@

dlapiper.com

ETHAN H. TOWNSEND

DLA PIPER LLP (US)

1201 N. Market Street

Suite 2100

Wilmington, DE 19801

(302) 468-5700

Counsel for Amici Curiae

May 24, 2018

APPENDIX

Missouri Capital Cases Involving Potential

Death Sentence, 1998 - Present

Year

Defendant

Sentenced

1998

Charles

Armentrout

1998

Walter

Barton

1998

Case No. /

Source

22971-01754

Sentence

Death (Jury)

998 S.W.2d

Death (Jury)

19, 24 (Mo.

banc 1999)

Winston

2194R-03409- LWOP (Jury)

Bell

Jerry

22971-00382- LWOP (Jury)

Brandon

Carman

23CR196Death (Jury)

Deck

1084

Death (Jury)

John

995 S.W.2d

Death (Jury)

Middleton

443, 451 (Mo.

banc 1999)

Malik

22961-01479- LWOP (Jury)

Nettles

Kenneth

985 S.W.2d

Death (Jury)

Thompson

779 (Mo.

Death (Jury)

banc 1999)

Deshun

2196R-06443- LWOP (Jury)

Washington 01

John

2196R-04909- Death (Jury)

Winfield

Death (Jury)

Year

Defendant

Sentenced

1999

Cecil

Barriner

Case No. /

Source

34 S.W.3d

139, 144 (Mo.

banc 2000)

1999

Mark

Christeson

1999

Louis Clark

1999

Martiez

Davis

Robert

Driscoll

50 S.W.3d

251, 259-60

(Mo. banc

2001)

2195R-05234- LWOP (Jury)

22991-00101 LWOP (Jury)

1999

Paul

Goodwin

Cleveland

Jackson

Alis Johns

1999

Ernest

Johnson

1999

Antoine

King

1999

Earl Ringo

Sentence

Death (Judge

after jury

deadlock)

Death (Judge

after jury

deadlock)

Death (Jury)

55 S.W.3d

Death (Jury)

350, 351 (Mo.

banc 2001)

2198R-01227- Death (Jury)

22971LWOP (Jury)

02699A-01

LWOP (Jury)

25R05961379 Death (Jury)

13R01944153 Death (Jury)

8-01

Death (Jury)

41 S.W.3d

LWOP (Jury)

528 (Mo. App. LWOP (Jury)

E.D. 2001)

13R01986015 Death (Jury)

2-01

Death (Jury)

Year

Defendant

Sentenced

1999

John Smith

1999

2000

2001

Case No. /

Source

32 S.W.3d

532 (Mo.

banc 2000)

Walter

40 S.W.3d

Storey

898, 902 (Mo.

banc 2001)

Leon Taylor 18 S.W.3d

366, 368 (Mo.

banc 2000)

Danny

13 S.W.3d

Wolfe

248, 255 (Mo.

banc 2000)

Charles

13R01986244

Anglin

2-01

Gary Black CR5982792FX

Bobby

63 S.W.3d

Mayes

615, 624 (Mo.

banc 2001)

Derrick

25R03970239

Roper

F-01

Terrance

32R03970003

Anderson

Kenneth

0511Baumruk

CR00094

Andre Cole 71 S.W.3d

163, 177 (Mo.

banc 2002)

Kim Davis

107 S.W.3d

410, 416 (Mo.

App. W.D.

2003)

Sentence

Death (Jury)

LWOP (Jury)

Death (Jury)

LWOP (Jury)

Death (Jury)

LWOP (Jury)

Year

Defendant

Sentenced

2001

Richard

DeLong

2001

Kenneth

Thompson

2001

Michael

Tisius

Marcellus

Williams

2001

2002

Cecil

Barriner

2002

Deandre

Buchanan

2002

Kimber

Edwards

Michael

Farris

2002

Case No. /

Sentence

Source

31199CF0001 LWOP (Jury)

LWOP (Jury)

85 S.W.3d

Death (Judge

635, 637-38

after jury

(Mo. banc

deadlock)

2002)

Death (Judge

after jury

deadlock)

01CR164629 Death (Jury)

Death (Jury)

97 S.W.3d

Death (Jury)

462, 475 (Mo.

banc 2003)

111 S.W.3d

Death (Jury)

396, 397 (Mo. Death (Jury)

banc 2003)

00CR165704- Death (Judge

after jury

deadlock)

Death (Judge

after jury

deadlock)

Death (Judge

after jury

deadlock)

2100R-03704- Death (Jury)

16CR990049 LWOP (Jury)

06-01

Year

Defendant

Sentenced

2002

Lewis

Gilbert

2002

Douglas

Maupin

2002

Dorian

Perry

2003

Carman

Deck

2003

Travis Glass

2003

2004

2005

Case No. /

Source

13R069401054

-01

01CR168223

Sentence

Death (Jury)

LWOP (Jury)

2100R-01772- LWOP (Jury)

23CR196-1084 Death (Jury)

Death (Jury)

136 S.W.3d

Death (Jury)

496, 502 (Mo.

banc 2004)

Richard

2100R-04590- Death (Jury)

Strong

Death (Jury)

Michael

134 S.W.3d 21, Death (Jury)

Taylor

24 (Mo. banc

2004)

Eldon

01CR680916- LWOP (Jury)

Tinsley

Cecil

03CR170457

LWOP (Jury)

Barriner

LWOP (Jury)

Earl Forrest 03CR83190

Death (Jury)

Mark Gill

02CR754906

Death (Jury)

David Zink 27R050100219 Death (Jury)

Johnny

02CR-003834 / Death (Jury)

Johnson

207 S.W.3d 24,

30 (Mo. banc

2006)

Vincent

2103R-00005- Death (Jury)

McFadden

Year

Defendant

Sentenced

2005

Kenneth

Sisak

2006

Gary Black

2006

Justin

Brown

2006

Ernest

Johnson

2006

2007

2008

Case No. /

Source

2102R-0145801

29R059802792

-01

246 S.W.3d

519, 522 (Mo.

App. S.D.

2008)

13R019441538

-01

Sentence

LWOP (Jury)

Death (Jury)

LWOP (Jury)

Death (Jury)

Luther

25R05020745F LWOP (Jury)

Martin

-01

LWOP (Jury)

Vincent

2103R-02642- Death (Jury)

McFadden

Scott

2103R-05745- Death (Judge

McLaughlin 01

after jury

deadlock)

Danny

26R029700785 LWOP (Jury)

Wolfe

-01

LWOP

Walter

240 S.W.3d

Death (Jury)

Barton

693, 700 (Mo.

banc 2007)

Kenneth

0511-CR00094 Death (Jury)

Baumruk

Vincent

2103R-00005- Death (Jury)

McFadden

Terrance

32R039700031 Death (Jury)

Anderson

Richard

0616Death (Jury)

Davis

CR03195-01

Carman

23CR196-1084 Death (Jury)

Deck

Death (Jury)

Year

Defendant

Sentenced

2008

Brian

Dorsey

2008

Larry

Flenoid

2008

Kevin

Johnson

2008

Vincent

McFadden

2008

Leonard

Taylor

Case No. /

Source

07BACR01875

2100R-0197901

2105R-0283301

2103R-0264202

2104R-0533801

2009

Gregory

Bowman

2009

Stanley

Johnson

Lance

Shockley

337 S.W.3d

679, 683 (Mo.

banc 2011)

2106R-0403401

05C2CR00080-01

2009

2010

Michael

Tisius

Fredrick

Barnes

01CR164629

2011

Ryan

Patterson

09G9CR02082-01

2011

Todd

Shepard

Christopher

Collings

08SLCR08802-01

08PHCR01205

2011

2012

0722CR09122-01

Sentence

Death (Jury)

LWOP (Jury)

Death (Jury)

LWOP (Jury)

Death (Judge

after jury

deadlock)

Death (Jury)

LWOP

(Judge after

jury

deadlock)

LWOP (Jury)

Death (Jury)

Year

Defendant

Sentenced

2013

Robert

Blurton

2013

2017

2018

Case No. /

Source

10CYCR01475

Jesse

Driskill

David

Hosier

Mark Gill

10LACR00872-01

09ACCR02972-01

12BACR03801

Marvin Rice 1611CR00967-01

Craig Wood

1431CR00658-01

Sentence

Death (Jury)

LWOP (Jury)

Death (Judge

after jury

deadlock)

Death (Judge

after jury

deadlock)

SUMMARY:



133 capital crimes for which the death

penalty was an option



121 capital crimes for which the jury gave

an affirmative sentence. Of those cases,

83 resulted in a death sentence and 38

resulted in a life sentence.



12 capital crimes for which a judge

rendered sentence after the jury

deadlocked. Of those cases, 11 resulted in

a death sentence and one resulted in a life

sentence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.