Petitioners Brief — James Erin McKinney, Petitioner v. Arizona
Supreme Court briefAug 21, 2019
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No. 18-1109
IN THE
Supreme Court of the United States
_________
JAMES ERIN MCKINNEY,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
_________
On Writ of Certiorari to the
Arizona Supreme Court
_________
BRIEF FOR PETITIONER
_________
AMY L. MARSHAK
JONATHAN L. BACKER
JOSHUA A. GELTZER
MARY B. MCCORD
INSTITUTE FOR
CONSTITUTIONAL ADVOCACY
AND PROTECTION
Georgetown University
Law Center
600 New Jersey Ave., NW
Washington, D.C. 20001
(202) 661-6728
NEAL KUMAR KATYAL
Counsel of Record
KATHERINE B. WELLINGTON
ERIN R. CHAPMAN
MICHAEL J. WEST
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
SHARMILA ROY
P.O. Box 441
Laveen, AZ 85339
(602) 930-2690
Counsel for Petitioner
CAPITAL CASE
QUESTIONS PRESENTED
1. Whether the Arizona Supreme Court was required
to apply current law when weighing mitigating and
aggravating evidence to determine whether a death
sentence is warranted.
2. Whether the correction of error under Eddings v.
Oklahoma, 455 U.S. 104 (1982), requires resentencing.
(i)
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
TABLE OF AUTHORITIES ....................................... iv
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 5
JURISDICTION .......................................................... 5
CONSTITUTIONAL PROVISIONS
INVOLVED ......................................................... 5
STATEMENT .............................................................. 6
A.
Factual Background ................................. 6
B.
Procedural History ................................. 10
SUMMARY OF ARGUMENT ................................... 15
ARGUMENT ............................................................. 19
I.
THE ARIZONA SUPREME COURT
WAS
REQUIRED
TO
APPLY
CURRENT LAW WHEN WEIGHING
THE
MITIGATING
AND
AGGRAVATING
EVIDENCE
IN
MCKINNEY’S CASE ...................................... 19
A.
Current Law Applies To All
Cases Pending On Direct Review .......... 20
B.
The Arizona Supreme Court
Reopened Direct Review Of
McKinney’s
Criminal
Case,
Requiring It To Apply Current
Law .......................................................... 21
C.
Under Current Law, McKinney Is
Entitled To Resentencing By A
Jury ......................................................... 29
iii
TABLE OF CONTENTS—Continued
Page
II.
CORRECTION OF EDDINGS ERROR
REQUIRES RESENTENCING IN
THE TRIAL COURT ...................................... 33
A.
The Arizona Courts’ Failure To
Consider Mitigating Evidence Of
McKinney’s
PTSD
Violated
Eddings ................................................... 33
B.
This Court Has Long Held That
Eddings
Error
Requires
Resentencing In The Trial Court ........... 36
C.
This Court Has Made Clear That
Only A Trial-Level Sentencer Can
Provide
The
Consideration
Eddings Requires ................................... 39
D.
Cabana And Clemons Do Not
Apply To Mitigating Evidence ............... 41
E.
The Record Is Insufficient To
Permit
Individualized
Consideration Of The Mitigating
Evidence In McKinney’s Case ................ 43
CONCLUSION .......................................................... 49
iv
TABLE OF AUTHORITIES
Page(s)
CASES:
Arizona v. Rumsey,
467 U.S. 203 (1984) .............................................. 35
Batson v. Kentucky,
476 U.S. 79 (1986) ................................................ 28
Berman v. United States,
302 U.S. 211 (1937) .............................................. 26
Blakely v. Washington,
542 U.S. 296 (2004) .............................................. 25
Burrell v. United States,
467 F.3d 160 (2nd Cir. 2006) ............................... 27
Burton v. Stewart,
549 U.S. 147 (2007) .............................................. 26
Cabana v. Bullock,
474 U.S. 376 (1986) .................................. 41, 42, 43
Caldwell v. Mississippi,
472 U.S. 320 (1985) ...................................... passim
Clemons v. Mississippi,
494 U.S. 738 (1990) ........................................ 42, 43
Eddings v. Oklahoma,
455 U.S. 104 (1982) ...................................... passim
Enmund v. Florida,
458 U.S. 782 (1982) .............................................. 42
Estelle v. Smith,
451 U.S. 454 (1981) .............................................. 26
Glossip v. Gross,
135 S. Ct. 2726 (2015) .......................................... 41
v
TABLE OF AUTHORITIES—Continued
Page(s)
Gonzalez v. Thaler,
565 U.S. 134 (2012) ........................................ 22, 24
Griffith v. Kentucky,
479 U.S. 314 (1987) ...................................... passim
Hitchcock v. Dugger,
481 U.S. 393 (1987) ...................................... passim
Hurst v. Florida,
136 S. Ct. 616 (2016) .................................... passim
Jimenez v. Quarterman,
555 U.S. 113 (2009) ...................................... passim
Lockett v. Ohio,
438 U.S. 586 (1978) ........................................ 34, 37
Mackey v. United States,
401 U.S. 667 (1971) .............................................. 20
Madison v. Alabama,
139 S. Ct. 718 (2019) ...................................... 18, 44
Magwood v. Patterson,
561 U.S. 320 (2010) ........................................ 32, 33
Martin v. Hunter’s Lessee,
14 U.S. (1 Wheat.) 304 (1816) .............................. 21
McKinney v. Ryan,
No. CV 03-774-PHX-DGC, 2009 WL
2432738 (D. Ariz. 2009) ....................................... 12
McKinney v. Ryan,
730 F.3d 903 (9th Cir. 2013) ................................ 12
McKinney v. Ryan,
745 F.3d 963 (9th Cir. 2014) ................................ 12
McKoy v. North Carolina,
494 U.S. 433 (1990) .............................................. 37
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Mills v. Maryland,
486 U.S. 367 (1988) ............................ 17, 18, 28, 37
Mitchell v. United States,
526 U.S. 314 (1999) .............................................. 26
Montgomery v. Louisiana,
136 S. Ct. 718 (2016) ............................................ 21
Moore v. Texas,
137 S. Ct. 1039 (2017) .......................................... 47
Murdaugh v. Ryan,
724 F.3d 1104 (9th Cir. 2013) ........................ 31, 32
Nelson v. Quarterman,
472 F.3d 287 (5th Cir. 2006) ................................ 47
Penry v. Lynaugh,
492 U.S. 302 (1989) ............................ 37, 38, 40, 41
Ring v. Arizona,
536 U.S. 584 (2002) ...................................... passim
Ryan v. McKinney,
137 S. Ct. 39 (2016) .............................................. 13
Schriro v. Summerlin,
542 U.S. 348 (2004) .............................................. 29
Simmons v. South Carolina,
512 U.S. 154 (1994) .............................................. 28
Skipper v. South Carolina,
476 U.S. 1 (1986) ............................................ 36, 37
Spaziano v. Florida,
468 U.S. 447 (1984) .............................................. 43
State v. Bible,
858 P.2d 1152 (Ariz. 1993) ................................... 35
vii
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Fleming,
61 So. 3d 399 (Fla. 2011) ............................... 16, 25
State v. Hedlund,
431 P.3d 181 (Ariz. 2018) ............................... 30, 32
State v. Kilgore,
216 P.3d 393 (Wash. 2009) ...................... 16, 25, 27
State v. Martinez,
189 P.3d 348 (Ariz. 2008) ..................................... 32
State v. Prince,
250 P.3d 1145 (Ariz. 2011) ................................... 32
State v. Ring,
65 P.3d 915 (Ariz. 2003)....................................... 30
State v. Rumsey,
665 P.2d 48 (Ariz. 1983)....................................... 35
State v. Slemmer,
823 P.2d 41 (Ariz. 1991)................................. 21, 29
State v. Styers,
254 P.3d 1132 (Ariz. 2011) ............................. 14, 39
United States v. Booker,
543 U.S. 220 (2005) ........................................ 24, 25
United States v. Hadden,
475 F.3d 652 (4th Cir. 2007) .......................... 16, 24
United States v. Haymond,
139 S. Ct. 2369 (2019) .......................................... 30
Woodson v. North Carolina,
428 U.S. 280 (1976) ........................................ 33, 34
Yates v. Aiken,
484 U.S. 211 (1988) .............................................. 21
viii
TABLE OF AUTHORITIES—Continued
Page(s)
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. VI .................................... passim
U.S. Const. amend. VIII ......................... 6, 33, 34, 39
U.S. Const. amend. XIV ..................................... 6, 34
STATUTES:
28 U.S.C. § 1257(a) ................................................... 5
Ariz. Rev. Stat. Ann. § 13-752 ................................ 39
Ariz. Rev. Stat. Ann. § 13-755 .......................... 31, 32
Ariz. Rev. Stat. Ann. § 13-756 ................................ 32
RULES:
Sup. Ct. R. 15.2 ................................................. 33, 47
Ariz. R. Crim. P. 31.22(c) ........................................ 24
OTHER AUTHORITIES:
Anushka Pai et al., Posttraumatic Stress
Disorder in the DSM-5: Controversy,
Change, and Conceptual Considerations,
7 Behav. Sci., Issue 1, no. 7, 2017 ....................... 46
Am. Pscyhiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders
§§ 308.30, 309.81 (3d ed. 1980) ............................ 46
Am. Pscyhiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders
§ 309.81 (4th ed. 1994) ......................................... 46
Am. Pscyhiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders
§ 309.81 (5th ed. 2013) ......................................... 46
IN THE
Supreme Court of the United States
_________
No. 18-1109
_________
JAMES ERIN MCKINNEY,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
_________
On Writ of Certiorari to the
Arizona Supreme Court
_________
BRIEF FOR PETITIONER
_________
INTRODUCTION
James McKinney seeks nothing more than any
other defendant facing the ultimate penalty: The
opportunity to present mitigating evidence in the
trial court, and to have that evidence considered by
the sentencer, before being put to death. See Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding that
a capital sentencer may not refuse, as a matter of
law, to consider relevant mitigating evidence). The
Arizona Supreme Court has twice denied him that
opportunity. This longstanding defect in McKinney’s
sentence, moreover, has now been joined by a new
error: In the decision below, the Arizona Supreme
Court violated Griffith v. Kentucky, 479 U.S. 314
(1)
2
(1987), which required the court to apply current law
when correcting McKinney’s sentence. These two
constitutional errors—one old and one new—each
require reversal of the decision below.
By all accounts, McKinney “endured a horrific
childhood.” Pet. App. 5a. He was physically abused,
frequently deprived of food and water, and forced to
live in filth. See id. at 19a-24a. As his sister explained, “we were all stressed out wondering when
the next time we were getting beat; wondering when
we were going to eat next.” JA48. As a result of his
abusive childhood, McKinney suffers from PostTraumatic Stress Disorder. See Pet. App. 25a.
In 1991, at the age of 23, McKinney and his halfbrother killed two people in the course of burglarizing the victims’ homes. See id. at 17a-18a. McKinney was tried before a jury and convicted of murder.
Id. at 18a. He was sentenced by a judge. At his
sentencing hearing, McKinney presented evidence
that he suffered from PTSD. Although the judge
accepted this diagnosis, he did not consider it as part
of his sentencing decision. See id. at 187a-189a.
Under Arizona law at the time, the judge was prohibited from taking into account mitigating evidence
that was not causally connected to the crime. See id.
at 29a-30a. The judge sentenced McKinney to death,
and his sentence was affirmed on direct review by
the Arizona Supreme Court.
In 2015, the Ninth Circuit granted McKinney a
conditional writ of habeas corpus. The court concluded that both the sentencing judge and the Arizona Supreme Court had refused as a matter of law to
consider the mitigating evidence of McKinney’s
PTSD, in violation of Eddings. See Pet. App. 68a. In
3
response to the Ninth Circuit’s ruling, the State
sought independent review of McKinney’s death
sentence by the Arizona Supreme Court. Id. at 3a.
McKinney opposed that motion on the ground that
he is entitled to resentencing by a jury under Ring v.
Arizona, 536 U.S. 584 (2002), and Hurst v. Florida,
136 S. Ct. 616 (2016), which hold that juries—not
judges—must make the findings necessary to impose
the death penalty.
The Arizona Supreme Court granted the State’s
request, concluding that the 2002 Ring decision did
not apply because McKinney’s conviction became
final in 1996. See Pet. App. 3a-4a. The Arizona
Supreme Court then proceeded to weigh on its own
the mitigating and aggravating evidence in McKinney’s case. Id. at 4a-9a. It concluded that “[g]iven
the aggravating circumstances in this case,” McKinney’s “mitigating evidence is not sufficiently substantial to warrant leniency.” Id. at 5a. The court “affirm[ed]” McKinney’s death sentence. Id. at 9a.
This case presents two questions. The first is
whether a court must apply the law as it exists
today, rather than as it existed at the time a defendant’s conviction first became final, when weighing
anew the mitigating and aggravating evidence in a
capital case. The answer to that question is yes. In
Griffith, the Court held that current law applies to
all cases pending on direct review or not yet final.
See 479 U.S. at 328. A case becomes final when this
Court denies certiorari or the time for seeking certiorari expires. See id. at 321 n.6. But a final case does
not always remain final. In Jimenez v. Quarterman,
555 U.S. 113 (2009), the Court held that a state court
4
may reopen direct review, rendering a case non-final.
See id. at 120.
When the Arizona Supreme Court granted independent review of McKinney’s death sentence, it
reopened direct review of McKinney’s criminal case.
That was, after all, the whole point: The sentencing
court had erred in its refusal to consider mitigating
evidence during McKinney’s initial sentencing, and
the Arizona Supreme Court sought to correct that
error by considering this disregarded evidence. Once
the Arizona Supreme Court reopened direct review,
however, Griffith dictates that it had to apply current law. The Arizona Supreme Court refused to do
so, and its decision therefore should be reversed.
Under current law, McKinney is entitled to resentencing in the trial court by a jury.
The second question presented asks whether correction of the Eddings error in McKinney’s case—
whether under old law or new—requires resentencing in the trial court. This Court’s longstanding
precedents make clear that it does. After finding an
Eddings error, the Court has repeatedly remanded
for resentencing in the trial court. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 399 (1987). In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Court
explained why this is so: Eddings “clearly envisioned” that consideration of mitigating evidence
“would occur among sentencers who were present to
hear the evidence and arguments and see the witnesses,” rather than by appellate courts, which are
institutionally incapable of providing in the first
instance the consideration of mitigating evidence
that Eddings requires. Id. at 330-331. Thus, even if
current law does not apply to McKinney’s case, this
5
Court’s precedents dictate that he is entitled to
resentencing in the trial court. The Arizona Supreme Court denied McKinney that opportunity. For
this reason as well, the decision below should be
reversed.
OPINIONS BELOW
The Arizona Supreme Court’s independent review
of McKinney’s death sentence, which is the decision
upon which certiorari was granted, is reported at 426
P.3d 1204 (2018). Pet. App. 1a-9a. That court’s
order denying rehearing is not reported. Id. at 10a11a. The Arizona Supreme Court’s opinion affirming McKinney’s conviction and sentence is reported
at 917 P.2d 1214 (1996). Pet. App. 119a-167a. The
trial court’s sentencing decision is not reported. Id.
at 168a-193a. The Ninth Circuit’s en banc decision
granting a conditional writ of habeas corpus is
reported at 813 F.3d 798 (2015). Pet. App. 12a-118a.
JURISDICTION
The Arizona Supreme Court entered judgment on
September 27, 2018. Petitioner filed a timely motion
for reconsideration, which was denied on October 23,
2018. Justice Kagan granted a 30-day extension of
the period for filing a petition to February 21, 2019,
and McKinney timely filed his petition. The Court
granted certiorari on June 10, 2019. The Court’s
jurisdiction is invoked under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment, U.S. Const. amend. VI,
provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and pub-
6
lic trial, by an impartial jury of the State
and district wherein the crime shall have
been committed, which district shall have
been previously ascertained by law, and
to be informed of the nature and cause of
the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of
Counsel for his defence.
The Eighth Amendment, U.S. Const. amend. VIII,
provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
The Due Process Clause of the Fourteenth
Amendment, U.S. Const. amend. XIV, § 1, provides:
[N]or shall any State deprive any person
of life, liberty, or property, without due
process of law * * * .
STATEMENT
A. Factual Background
McKinney suffered a “horrific childhood.” Pet. App.
5a. He began life with his biological parents, James
McKinney, Sr., and Bobbie Jean Morris, in a home
that McKinney’s aunt described as squalid. See id.
at 19a. As she put it, “[w]hen you walked through
the door, it wasn’t nothing to see, you know, diapers
full of—all around. * * * Everything stunk.” Id.
(internal quotation marks omitted). James was an
alcoholic, and Bobbie tried to leave him when
McKinney was three years old. Id.
7
Bobbie fled with McKinney and his two sisters to
California, and then Kansas, and then California
again, and then Texas, and then New Mexico. Id. at
19a-20a; JA61-62. Each time, James found Bobbie
and brought her and the children back to Arizona.
Pet. App. 20a. According to James, Bobbie “kidnapped” the children, and “he took them back after
he found out they were being physically abused and
were being locked in closets, hungry and sick.” Id.
(internal quotation marks omitted). James eventually remarried and gained custody of McKinney and
his sisters. Id.
McKinney’s life with his father and stepmother,
Shirley Crow McKinney, was “even worse” than
before. Id. at 20a. The house was “gross,” “filthy,”
and “disgusting.” JA65. As McKinney’s aunt put it,
“the kids were filthy, they never had clean clothes
that I ever saw them in.” Id. McKinney shared a
small bedroom with his two sisters, his half-brother
Michael Hedlund, and the animals Shirley routinely
brought home—including a boa constrictor, a monkey, goats, chickens, dogs, and cats. Pet. App. 20a;
JA66-67. The animals “regularly defecated and
urinated in the bedroom.”
Pet. App. 20a-21a.
McKinney attended school in “dirty clothes that
reeked of urine from being on the bedroom floor with
the animals,” and he was harassed by other children
as a result. Id. at 21a-22a.
McKinney and his siblings “suffered regular and
extensive physical, verbal, and emotional abuse.” Id.
at 22a. Shirley kept belts, switches, and cords available for near-daily beatings. JA32-33, 44. McKinney’s younger sister “could not recall a time when
none of the children had a welt or bruise inflicted by”
8
their stepmother. Pet. App. 22a. On one occasion,
Shirley took a garden hose and beat McKinney “on
the back of his head, down his back, all over his legs,
his arms; anything that moved, she hit him.” JA69.
McKinney also frequently witnessed Shirley beating
his siblings. See id. at 147. In addition to physical
abuse, Shirley verbally abused the children, telling
them that they were “stupid, ugly, and not worth
anything.” Pet. App. 23a (alterations and internal
quotation marks omitted); JA44.
Shirley regularly locked McKinney and his siblings
out of the house for hours, often in little clothing and
without food or water. Pet. App. 23a; JA70-72.
When Shirley “was really angry at them, they
couldn’t turn the water faucet on outside” or “get a
drink of water,” even when temperatures reached
“110 degrees outside” in the Arizona summer. Pet.
App. 23a; JA70-71. If the children wanted to eat,
they were required to prepare food for themselves.
McKinney’s aunt testified that she saw McKinney
and Hedlund “standing on chairs at the stove cooking
or having to stand on chairs to do the dishes because
they were too small to reach the stove and the counters.” Pet. App. 21a (internal quotation marks
omitted); JA70. If the dishes were not done, Shirley
would beat McKinney and his siblings. Pet. App.
22a. As McKinney’s sister explained, their childhood
was “horrible. It was scary. It seems like we were
all stressed out wondering when the next time we
were getting beat; wondering when we were going to
eat next.” JA48.
By age 10, “McKinney had become distant, quiet
and withdrawn.” Pet. App. 24a. At age 11, he ran
away from home, “dirty” and “bruised” from a recent
9
beating. Id. McKinney took a bus across state lines
and then hitchhiked to his aunt’s home. Id.; JA7576. McKinney’s biological mother Bobbie responded
by calling the police, and the sheriff placed McKinney in juvenile detention. Pet. App. 24a. McKinney
began drinking alcohol and smoking marijuana
around age 11, and he dropped out of school in the
seventh grade. Id.
In 1991, McKinney and his half-brother, Hedlund,
committed five burglaries. The last two burglaries
resulted in the death of Christine Mertens and Jim
McClain. Id. at 17a-18a. In the course of the burglary of Mertens’ home, Mertens was stabbed multiple
times and suffered defensive wounds, which “indicat[ed] a struggle” took place. Id. at 7a-8a. One of
the burglars then “held Ms. Mertens down on the
floor and shot her in the back of the head with a
handgun, covering the gun with a pillow.” Id. at
18a.1 About two weeks later, McKinney and Hedlund entered McClain’s home, also to commit burglary. McClain “was shot in the back of the head by
either McKinney or Hedlund” while asleep in his
bedroom. Id. At the time, McKinney was 23 years
old. Id. at 17a.
1
McKinney’s half-brother, Christopher Morris, may also have
been present in Mertens’ home. See Pet. App. 18a. Morris, who
was involved in three of the burglaries with McKinney and
Hedlund, “testified that he was at work at Burger King on the
night” of Mertens’ murder, “but Burger King had no record of
him working that night.” Id. The identity of Mertens’ assailant
was not determined by the jury. See id. at 27a.
10
B. Procedural History
1. The State tried McKinney and Hedlund together
before two different juries. Id. at 18a. McKinney’s
jury found him guilty of two counts of first-degree
murder by way of a general verdict form, which did
not indicate whether McKinney had committed
premeditated murder or felony murder. Id. at 18a,
27a. Hedlund was found guilty of one count of firstdegree murder and one count of second-degree murder. Id. at 18a. The trial judge indicated that he
believed McKinney had killed Mertens but not
McClain. See id. at 27a, 185-186a.
McKinney’s capital sentencing took place before the
same trial judge. See id. at 27a. At the time, “Arizona law provided for two kinds of mitigation factors in
capital sentencing—statutory and nonstatutory.” Id.
at 14a. McKinney sought leniency based on 11
mitigating circumstances, including his PTSD (a
nonstatutory mitigating factor) and his inability to
appreciate the wrongfulness of his conduct (a statutory mitigating factor). See JA311-323.
At the sentencing hearing, a psychologist testified
that he had diagnosed McKinney with “PTSD resulting from the horrific childhood McKinney had suffered.” Pet. App. 25a. The psychologist explained
that McKinney had a tendency to “withdraw[ ]” from
stressful situations. Id.; JA118. This tendency to
withdraw, however, went hand-in-hand with a
tendency to “be emotionally overwhelmed by environmental stress and act in poorly-judged ways just
to reduce the internal emotional turmoil.” Pet. App.
26a (internal quotation marks and alterations omitted); see JA108. The psychologist explained that
McKinney’s personality traits—withdrawal from
11
stressful situations paired with emotional outbursts—are “two of the primary ingredients of PostTraumatic Stress.” JA111. The psychologist concluded that the burglaries may have “triggered
something” in McKinney, id. at 124, potentially
leading to “some kind of reflexive kind of thinking,
some emotional kind of thinking rather than logical,
reflective assessment of the alternatives.” Id. at 126.
To support the psychologist’s testimony, the defense
introduced two scientific articles connecting abusive
childhoods with violent crimes. See id. at 343-366,
367-384.
The trial judge accepted the psychologist’s diagnosis, see Pet. App. 29a, 187a-188a, describing McKinney’s childhood as “beyond the comprehension and
understanding of most people.” Id. at 187a. Under
Arizona law at the time, however, the judge was
prohibited from considering nonstatutory mitigating
evidence that lacked a causal connection to the
crime. Id. at 28a-29a. The judge explained that he
did not “find any credible evidence to suggest that,
even if the diagnosis of Post-traumatic Stress Syndrome were accurate in Mr. McKinney’s case, that
[it] in any way significantly impaired Mr. McKinney’s conduct.” Id. at 189a. The judge similarly
stated that “there simply was no substantial reason
to believe that even if the trauma that Mr. McKinney
had suffered in childhood had contributed to an
appropriate diagnosis of Post-traumatic Stress
Syndrome that it in any way affected his conduct in
this case.” Id. at 189a-190a. The judge concluded
that McKinney’s PTSD was unconnected to his
criminal behavior and that it accordingly did not
qualify as mitigating evidence. See id. at 30a-31a,
189a-191a.
12
The judge sentenced McKinney to death. Id. at
29a. On de novo review of McKinney’s death sentence, the Arizona Supreme Court affirmed. The
court did not consider McKinney’s PTSD, accepting
the sentencing judge’s conclusion “that, as a factual
matter,” McKinney’s PTSD was not causally connected to the crime. Id. at 53a. The Arizona Supreme Court emphasized the psychologist’s testimony that McKinney’s PTSD would have caused him to
“avoid engaging in stressful situations, such as these
burglaries and murders.” Id. at 161a. McKinney did
not seek certiorari.
2. In 2003, McKinney filed a habeas petition in
federal court in Arizona. McKinney argued that his
sentence violated Eddings, which prohibits the
capital sentencer from refusing as a matter of law to
consider relevant mitigating evidence. See Eddings,
455 U.S. at 114-115. McKinney explained that
neither the trial judge nor the Arizona Supreme
Court had considered the mitigating evidence of his
PTSD. The district court denied relief. McKinney v.
Ryan, No. CV 03-774-PHX-DGC, 2009 WL 2432738,
at *22-23 (D. Ariz. 2009). A Ninth Circuit panel
affirmed. 730 F.3d 903, 921 (9th Cir. 2013).
The Ninth Circuit granted rehearing en banc, 745
F.3d 963 (9th Cir. 2014), and reversed. After reviewing Arizona capital sentencing proceedings from the
1980s to the mid-2000s, the Ninth Circuit held that
“the Arizona Supreme Court [had] repeatedly articulated” a “causal nexus test” that prohibited consideration of nonstatutory mitigating evidence unconnected to the defendant’s crime. Pet. App. 37a. The
Ninth Circuit concluded that the Arizona courts had
13
violated Eddings in death penalty cases over a 15year period between 1989 and 2005. Id. at 37a-47a.2
Turning to McKinney’s case, the Ninth Circuit held
that both the trial judge and the Arizona Supreme
Court had committed Eddings error, and that the
error was not harmless. Id. at 50a-60a. As the
Ninth Circuit explained, “McKinney’s evidence of
PTSD resulting from sustained, severe childhood
abuse would have had a substantial impact on a
capital sentencer who was permitted to evaluate and
give appropriate weight to it as a nonstatutory
mitigating factor.” Id. at 60a. The Ninth Circuit
remanded to the federal district court “with instructions to grant the writ with respect to McKinney’s
sentence unless the state, within a reasonable period, either corrects the constitutional error in his
death sentence or vacates the sentence and imposes
a lesser sentence consistent with law.” Id. at 68a.
The State sought certiorari, and the Court denied the
petition. Ryan v. McKinney, 137 S. Ct. 39 (2016).
3. Following the Ninth Circuit’s decision, the State
filed a motion in the Arizona Supreme Court for a
new independent review of McKinney’s death sentence. The State contended that the “only remedy to
cure any error” in the Arizona Supreme Court’s
“independent review is to have” that court “conduct a
new independent review of McKinney’s death sentences and reconsider the proffered PTSD and other
2
The Eddings error identified by the Ninth Circuit in McKinney’s habeas appeal affects at least 19 other capital cases in
Arizona. See Pet. 24; see also Cert.-Stage Amicus Br. of Arizona
Capital Representation Project and Arizona Attorneys for
Criminal Justice 6-7.
14
mitigation he presented in the sentencing calculus.”
JA389. McKinney opposed the motion, arguing that
he was entitled to resentencing by a jury under Ring
and Hurst.
The Arizona Supreme Court granted the State’s
request for independent review. The court concluded
that McKinney was not entitled to resentencing by a
jury because his “case was ‘final’ before the decision
in Ring.” Pet. App. 3a-4a. The Arizona Supreme
Court cited its earlier decision in State v. Styers, 254
P.3d 1132 (Ariz. 2011), which held that Ring did not
apply on independent review where the defendant
“had exhausted available appeals, his petition for
certiorari had been denied, and the mandate had
issued * * * before Ring was decided.” Id. at 1133-34.
The Arizona Supreme Court did not address Hurst.
See Pet. App. 3a-4a.
The Arizona Supreme Court conducted an “independent review” of McKinney’s death sentence to
“correct[ ]” the Eddings error identified by the Ninth
Circuit. Id. at 3a (internal quotation marks omitted).
As part of that review, the court on its own weighed
the mitigating and aggravating evidence in McKinney’s case. See id. at 4a-9a. The court concluded
that the evidence of McKinney’s PTSD was entitled
to little weight because “it bears little or no relation
to his behavior during Mertens’ murder.” Id. at 5a.
The court emphasized the psychologist’s opinion that
McKinney would “withdraw” from violent situations
as a result of his PTSD. Id. at 5a-6a (internal quotation marks omitted). The court did not discuss the
same psychologist’s testimony that violent situations
could trigger McKinney’s PTSD. See id. After
weighing the mitigating and aggravating evidence in
15
McKinney’s case, the Arizona Supreme Court “affirm[ed]” McKinney’s death sentence. Id. at 9a.
This Court granted certiorari.
SUMMARY OF ARGUMENT
I. This Court held in Griffith that current law applies to all cases, state or federal, pending on direct
review or not yet final. See Griffith, 479 U.S. at 328.
In the ordinary course, a case becomes final—and
direct review ends—when the Court denies certiorari
or the time to seek certiorari expires. See id. at 321
n.6. In Jimenez, however, the Court held that a state
court may reopen direct review, rendering the defendant’s conviction “again capable of modification
through direct appeal to the state courts and to this
Court on certiorari”—and thus non-final. 555 U.S. at
120.
By granting independent review of McKinney’s
death sentence, the Arizona Supreme Court reopened direct review. At that point, McKinney’s
death sentence was “again capable of modification”
by the Arizona Supreme Court. Indeed, that was the
very purpose of the proceedings below: The Arizona
Supreme Court sought to correct the Eddings error
in McKinney’s sentence by reassessing the mitigating and aggravating evidence, including the evidence
of McKinney’s PTSD. See Pet. App. 4a-9a. Weighing
mitigating and aggravating evidence to determine
whether a death sentence is warranted is a fundamental and profoundly consequential part of a capital defendant’s criminal case. See Eddings, 455 U.S.
at 110. By agreeing to conduct this weighing, at the
State’s request, the Arizona Supreme Court necessarily reopened McKinney’s criminal case.
16
As numerous state and federal courts have held,
when a court exercises its discretion to correct a
sentence or conduct a resentencing, current law
applies. See, e.g., United States v. Hadden, 475 F.3d
652, 664, 670-671 (4th Cir. 2007); State v. Fleming,
61 So. 3d 399, 407 (Fla. 2011); State v. Kilgore, 216
P.3d 393, 398 & n.10 (Wash. 2009). This conclusion
flows from Griffith, which holds that “selective
application of new rules violates the principle of
treating similarly situated defendants the same.”
479 U.S. at 323. Thus, when the Arizona Supreme
Court weighed the mitigating and aggravating
evidence in McKinney’s case, it was required to apply
the same constitutional framework as any other case
on direct review. See id.
The Arizona Supreme Court failed to do so and
thereby bypassed our Constitution’s jury system.
Instead of evaluating whether McKinney was entitled under current law to resentencing by a jury, the
court held that under the law in effect when McKinney’s sentence initially became final, the court itself
could reweigh the mitigating and aggravating evidence in McKinney’s case. See Pet. App. 3a-4a. In
reaching that conclusion, the Arizona Supreme Court
violated Griffith.
Under this Court’s decisions in Ring and Hurst,
moreover, it is clear that McKinney is entitled to
resentencing by a jury. As the Court stated in Hurst,
the “Sixth Amendment requires a jury, not a judge,
to find each fact necessary to impose a sentence of
death.” 146 S. Ct. at 619. In Arizona, before the
death penalty can be imposed, the sentencer must
find that the mitigating evidence does not outweigh
the aggravating evidence. In the proceedings below,
17
the Arizona Supreme Court itself made this finding.
See Pet. App. 4a-9a. Because this finding was made
by an appellate court rather than a jury, McKinney’s
death sentence is infected with error. Therefore, the
Arizona Supreme Court’s judgment should be reversed.
II. Even if the Arizona Supreme Court did not err
by applying the Constitution as it was understood in
1996 when correcting McKinney’s sentence, the court
still erred by refusing to remand McKinney’s case for
resentencing in the trial court. The only remedy that
this Court has recognized for Eddings error is resentencing in the trial court. Appellate reweighing of
mitigating and aggravating evidence cannot cure the
sentencer’s failure to consider mitigating evidence in
the first instance. The decision below violates this
longstanding principle.
In McKinney’s original sentencing proceeding, the
judge refused as a matter of law to consider the
mitigating evidence of McKinney’s PTSD. See Pet.
App. 189a-191a. The Arizona Supreme Court committed the same error on direct review. See id. at
161a. In the proceedings below, the Arizona Supreme Court considered the mitigating evidence of
McKinney’s PTSD, but it did so as an appellate
court, not as a capital sentencer. As a result, no
sentencer has ever considered the mitigating evidence of McKinney’s PTSD.
That result is inconsistent with this Court’s precedents. In Mills v. Maryland, 486 U.S. 367 (1988), the
Court stated that where a “sentencer’s failure to
consider all of the mitigating evidence risks erroneous imposition of the death sentence,” it is the
Court’s “duty to remand [the] case for resentencing.”
18
Id. at 375 (alterations and internal quotation marks
omitted). And in Hitchcock, the Court remanded for
a new sentencing hearing where a court—as here—
permitted the defendant to introduce mitigating
evidence but ultimately refused to consider that
evidence, in violation of Eddings. See Hitchcock, 481
U.S. at 399.
The Arizona Supreme Court’s decision to conduct
an independent reweighing of the mitigating and
aggravating evidence in McKinney’s case is also
inconsistent with this Court’s decision in Caldwell,
where the Court explained that appellate courts are
“wholly ill-suited to evaluate the appropriateness of
death in the first instance” and that Eddings “clearly
envisioned” that the consideration of mitigating
evidence “would occur among sentencers who were
present to hear the evidence and arguments and see
the witnesses.” Caldwell, 472 U.S. at 330-331.
Appellate review of a 20-year-old cold record is
simply insufficient to provide the consideration of
mitigating evidence that Eddings requires.
The record in this case, moreover, is irrevocably
tainted by the Eddings error. In McKinney’s original
sentencing proceeding, prosecution and defense alike
elicited testimony from the psychologist to determine
whether McKinney’s PTSD was causally connected to
his crimes—as required by Arizona law at the time.
A new sentencing proceeding is required to elicit
testimony regarding McKinney’s PTSD that is not
tainted by that error. See Madison v. Alabama, 139
S. Ct. 718, 731 (2019) (holding that state courts “may
not rely on any arguments or evidence tainted” by
legal error when determining whether a death sentence is warranted). Moreover, the scientific under-
19
standing of PTSD has evolved significantly since
McKinney’s sentencing more than two decades ago.
The Arizona Supreme Court’s continuing reliance on
outdated expert testimony is incongruous with
Eddings’ direction that courts must consider all
relevant mitigating evidence. For these reasons too,
the Eddings error in this case requires resentencing
in the trial court. This Court should reverse.
ARGUMENT
I. THE ARIZONA SUPREME COURT WAS
REQUIRED TO APPLY CURRENT LAW
WHEN WEIGHING THE MITIGATING AND
AGGRAVATING
EVIDENCE
IN
MCKINNEY’S CASE.
There are three straightforward steps to McKinney’s argument. First, Article III and the Supremacy
Clause require current law to apply to all cases, state
or federal, pending on direct review or not yet final.
See Griffith, 479 U.S. at 322, 328. Second, McKinney’s conviction, although previously final, was
reopened. His conviction became final in 1996, when
the time expired to seek certiorari from the Arizona
Supreme Court’s first review of his sentence. But his
conviction did not remain so. Following the Ninth
Circuit’s grant of habeas corpus relief, the State
sought and obtained a fresh review of McKinney’s
sentence by the Arizona Supreme Court. By granting a new review—which included a de novo weighing of the mitigating and aggravating evidence in
McKinney’s case to determine whether a death
sentence is warranted—the Arizona Supreme Court
reopened direct review of McKinney’s criminal case.
Third, because McKinney’s case is on direct review,
the Arizona Supreme Court was required to apply
20
current law, including Ring and Hurst. The Arizona
Supreme Court refused to do so, and its decision
should be reversed.
A. Current Law Applies To All Cases Pending
On Direct Review.
New rules for the conduct of criminal prosecutions
apply “to all cases, state or federal, pending on direct
review or not yet final.” Griffith, 479 U.S. at 328.
This basic principle derives from Article III and the
Supremacy Clause of the Constitution. As Justice
Harlan explained in his separate opinion in Mackey
v. United States, 401 U.S. 667 (1971), the Court
“possess[es] this awesome power of judicial review * * * only because we are a court of law, an
appellate court charged with the responsibility of
adjudicating cases or controversies according to the
law of the land.” Id. at 678 (Harlan, J., concurring in
the judgments in Nos. 36 and 82 and dissenting in
No. 81). The nature of judicial review precludes the
Court from “[s]imply fishing one case from the
stream of appellate review, using it as a vehicle for
pronouncing new constitutional standards, and then
permitting a stream of similar cases subsequently to
flow by unaffected by that new rule.” Id. at 679.
The Court adopted Justice Harlan’s view in Griffith, where it held that the “failure to apply a newly
declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” 479 U.S. at 322. Once the
Court announces a new rule in the case before it,
“the integrity of judicial review requires” that the
Court “apply that rule to all similar cases pending on
direct review.” Id. at 323. This approach avoids “the
actual inequity that results when the Court chooses
21
which of many similarly situated defendants should
be the chance beneficiary of a new rule.” Id. (emphasis and internal quotation marks omitted).
“As a practical matter, of course,” the Court “cannot hear each case pending on direct review and
apply the new rule.” Id. Instead, the Court fulfills
its “judicial responsibility by instructing the lower
courts to apply the new rule” to all cases that are
“not yet final.” Id. State courts, as well as federal
courts, are obligated to apply new constitutional
rules to cases pending on direct review. See id. at
328. Simply put, “[s]tates may not disregard a
controlling, constitutional command in their own
courts.” Montgomery v. Louisiana, 136 S. Ct. 718,
727 (2016) (citing Martin v. Hunter’s Lessee, 14 U.S.
(1 Wheat.) 304, 340-341, 344 (1816)). Where a state
court “has considered the merits of the federal claim,
it has a duty to grant the relief that federal law
requires.” Yates v. Aiken, 484 U.S. 211, 218 (1988).
The Arizona Supreme Court has acknowledged
that all new federal “rules or principles announced
for the conduct of criminal cases” must be applied “to
cases not yet final in the state and federal court
systems.” State v. Slemmer, 823 P.2d 41, 47 (Ariz.
1991). Moreover, the Arizona Supreme Court has
adopted the same approach with respect to new rules
of state constitutional law, which similarly apply to
all Arizona cases pending on direct review or not yet
final. See id. at 47, 49.
B. The Arizona Supreme Court Reopened
Direct Review Of McKinney’s Criminal
Case, Requiring It To Apply Current Law.
1. It is clear that current law applies to cases on
direct review. At issue in this case is whether
22
McKinney’s case is on direct review. Direct review
ends—and a conviction becomes “final”—“when this
Court affirms a conviction on the merits on direct
review or denies a petition for a writ of certiorari, or,
if a petitioner does not seek certiorari, when the time
for filing a certiorari petition expires.” Gonzalez v.
Thaler, 565 U.S. 134, 149 (2012) (internal quotation
marks omitted); see also Griffith, 479 U.S. at 321 n.6.
But a conviction that has become final does not
always remain final.
In Jimenez, the Court held that after a conviction
“initially [becomes] final,” a state court may reopen
direct review, rendering the conviction non-final.
555 U.S. at 119-120. Once reopened, a conviction
does not become final again until “the entirety of the
state direct appellate review process [is] completed”
and the “time for seeking certiorari review in this
Court expire[s].” Id. at 120-121. In Jimenez, the
Court found that the defendant’s conviction became
final in 1996, when direct review concluded. Id. at
119. In 2002, however, the state court reopened
direct review by permitting the defendant to file an
out-of-time appeal, and the defendant’s conviction
became “again capable of modification through direct
appeal to the state courts and to this Court on certiorari review.” Id. at 119-120. The defendant’s conviction remained non-final until 2004, when direct
review once again concluded. See id. at 120.
The same analysis applies in this case. McKinney’s
conviction became final in 1996, when the time
expired to seek certiorari from the Arizona Supreme
Court’s first review of his conviction. In 2015, however, the Ninth Circuit determined that McKinney’s
death sentence was unconstitutional under Eddings
23
because both the sentencing judge and the Arizona
Supreme Court on de novo review had refused as a
matter of law to consider nonstatutory mitigating
evidence of McKinney’s PTSD. See Pet. App. 50a55a. The Ninth Circuit issued a conditional writ of
habeas corpus, instructing the federal district court
“to grant the writ with respect to McKinney’s sentence unless the state, within a reasonable period,
either corrects the constitutional error in his death
sentence or vacates the sentence and imposes a
lesser sentence consistent with law.” Id. at 68a.
The State thus had a choice: It could reduce
McKinney’s sentence to life in prison or it could
“correct the constitutional error in his death sentence.” Id. The State sought to correct the error,
requesting that the Arizona Supreme Court “conduct
a new independent review of James McKinney’s
death sentence and reweigh the aggravating and
mitigating factors.” JA385. The Arizona Supreme
Court granted the State’s request. At that point,
McKinney’s conviction was “again capable of modification through direct appeal to the state courts and
to this Court on certiorari review.” Jimenez, 555
U.S. at 120.
Indeed, as in Jimenez, the very purpose of the independent review proceeding below was to re-do the
original direct review proceeding—this time with
proper consideration of all the mitigating and aggravating evidence in McKinney’s case, as required by
Eddings. The Arizona Supreme Court’s decision to
affirm McKinney’s death sentence following independent review, moreover, is appealable to this
Court on certiorari. By granting independent review, the Arizona Supreme Court thus reopened
24
McKinney’s criminal case, and McKinney’s conviction became non-final under Jimenez. Because direct
review has not concluded before this Court, McKinney’s conviction remains non-final.3
2. This conclusion is consistent with the position of
numerous state and federal courts, which hold that
direct review is reopened—and current law applies—
when a court exercises discretion to correct a defendant’s sentence or conduct a resentencing. As the
Fourth Circuit explained in Hadden, when a court
“correct[s]” a criminal defendant’s sentence, “the
order is part of the prisoner’s criminal case, and,
accordingly, a prisoner’s appeal of that aspect of the
order is part of the petitioner’s criminal case.” 475
F.3d at 664. Current law thus applies to the sentence correction. See id. at 666, 670 (applying United
States v. Booker, 543 U.S. 220 (2005), in a case that
3
Whether McKinney’s conviction is final, or has instead been
reopened, is a matter of federal law. See Gonzalez, 565 U.S. at
152 (rejecting “state-by-state definitions of the conclusion of
direct review”). It is notable, however, that the Arizona Supreme Court treated the proceedings below as a continuation of
direct review. The court used the same docket number and
docket as McKinney’s original direct review proceeding. See
JA1. On that docket, the court stated that McKinney’s case was
“[c]losed” on July 2, 1996, and “[r]einstated” on October 7, 2016.
Id. The court referred to McKinney as the “Appellant” and the
State as the “Appellee.” Id. The court ordered McKinney to file
an opening brief and the State to file an answering brief. Id. at
6-8 (Dkt. 79). And following its decision, the court automatically stayed its mandate under Arizona Rule of Criminal Procedure 31.22(c) until the time expired for filing a petition to this
Court “challenging the decision affirming the defendant’s
conviction or sentence on direct appeal.” Ariz. R. Crim. P.
31.22(c)(1)(A) (emphasis added); see JA10 (Dkt. 111).
25
became final prior to Booker but was later reopened
through sentence correction proceedings).
The Washington Supreme Court reached a similar
conclusion in Kilgore, which acknowledged “the
ability of state courts to restore the pendency of a
case” under Jimenez. Kilgore, 216 P.3d at 398 &
n.10. Where a court exercises its discretion “to
revisit an issue,” the court subjects its decision to “a
later appeal”—requiring it to apply current law. Id.
at 398 (examining whether Blakely v. Washington,
542 U.S. 296 (2004), applied to a case that became
final prior to the Blakely decision). The Florida
Supreme Court likewise has held that under Griffith,
where a court acts “de novo” in a resentencing proceeding, “the decisional law in effect at the time of
the resentencing or before any direct appeal from the
proceeding is final applies.” Fleming, 61 So. 3d at
407. That is because the “court has discretion at
resentencing—within certain constitutional confines—to impose sentence using available factors not
previously considered.” Id. at 406.
In this case, the purpose of the independent review
proceedings was to “correct” McKinney’s sentence
through a do-over of the original, flawed direct
review proceeding. See Pet. App. 4a. The question
the Arizona Supreme Court ordered the parties to
brief was the exact question it confronted on its first
direct review. Compare JA6-8 (Dkt. 79) (ordering
parties to brief “[w]hether the proffered mitigation is
sufficiently substantial to warrant leniency in light
of the existing aggravation”), with Pet. App. 138a
(stating that the Arizona Supreme Court is to “conduct[ ] a thorough and independent review of the
record and of the aggravating and mitigating evi-
26
dence to determine whether the sentence is justified”). And the Arizona Supreme Court performed
the same review a second time. The court exercised
its discretion—at the State’s request—to examine
the mitigating circumstances and weigh them
against the aggravating circumstances, ultimately
concluding that “[g]iven the aggravating circumstances in this case,” McKinney’s “mitigating evidence is not sufficiently substantial to warrant
leniency.” Pet. App. 5a.
By redoing a fundamental aspect of McKinney’s
capital sentencing, the Arizona Supreme Court
reopened direct review. This Court has made clear
that sentencing determinations are “part of the
criminal case,” including in capital cases. Mitchell v.
United States, 526 U.S. 314, 328-329 (1999); see
Estelle v. Smith, 451 U.S. 454, 462-463 (1981) (rejecting the argument in a death penalty case that “incrimination is complete once guilt has been adjudicated” (internal quotation marks omitted)). Indeed,
there is no final judgment in a criminal proceeding
until the defendant has been sentenced. See Burton
v. Stewart, 549 U.S. 147, 156-157 (2007) (per curiam)
(“Final judgment in a criminal case means sentence.
The sentence is the judgment.” (quoting Berman v.
United States, 302 U.S. 211, 212 (1937))). As this
Court stated in Mitchell, to “maintain that sentencing proceedings are not part of any criminal case is
contrary to the law and to common sense.” 526 U.S.
at 327 (internal quotation marks omitted).
Consideration of relevant mitigating circumstances
is an integral part of the capital sentencing process.
See Eddings, 455 U.S. at 114-115. In the proceedings below, the Arizona Supreme Court granted
27
independent review so that it could consider for the
first time mitigating evidence of McKinney’s PTSD,
and so that it could weigh all of the mitigating and
aggravating evidence in McKinney’s case to determine whether a death sentence is warranted. That
exercise of discretion is part of McKinney’s criminal
case.
In Burrell v. United States, 467 F.3d 160 (2d Cir.
2006) (Sotomayor, J.), the Second Circuit explained
that where a sentence correction is “strictly ministerial” and requires “a routine, nondiscretionary act”
that “could not [be] appealed on any valid ground,”
direct review remains closed. Id. at 161. The Washington Supreme Court has likewise held that direct
review is not reopened where a court “did not exercise its independent judgment,” leaving nothing for
review on appeal. Kilgore, 216 P.3d at 399. Determining whether a defendant’s crime and character
warrant a death sentence, however, is not a ministerial exercise. It is one of the most fundamental and
consequential exercises of discretion in our entire
judicial system. By granting independent review of
McKinney’s death sentence to correct the Eddings
error—which required a de novo weighing of the
mitigating and aggravating evidence to determine
the appropriate sentence—the Arizona Supreme
Court reopened McKinney’s criminal case, requiring
it to apply current law.
3. The approach adopted by the Arizona Supreme
Court in this case fundamentally undermines the
rule of law. If the Arizona Supreme Court is correct
that the law governing McKinney’s case is frozen at
the moment his conviction first became final—no
matter what happens afterward—then courts may
28
ignore new constitutional rules established by this
Court when re-doing core aspects of a defendant’s
criminal case.
For example, jurors empaneled post-Batson to resentence a pre-Batson defendant could be struck on
account of their race. Cf. Batson v. Kentucky, 476
U.S. 79, 89 (1986) (holding that a prosecutor could
not strike jurors on the basis of race). A preSimmons capital defendant at a post-Simmons
resentencing could be prohibited from informing the
jury of his parole ineligibility if the State seeks the
death penalty based on his future dangerousness.
Cf. Simmons v. South Carolina, 512 U.S. 154, 171
(1994) (plurality op.) (holding that a capital defendant must be permitted to inform the jury of his
ineligibility for parole); see id. at 177 (O’Connor, J.,
concurring in the judgment). And a post-Mills
sentencing jury empaneled to resentence a pre-Mills
defendant could ignore mitigation factors that were
not found unanimously by the jury. Cf. Mills, 486
U.S. at 374-375, 384 (holding that state may not
require jury unanimity with respect to mitigating
evidence).
That cannot be the way the Constitution works. As
the Court held in Griffith, “selective application of
new rules violates the principle of treating similarly
situated defendants the same.” 479 U.S. at 323. In
the proceedings below, the Arizona Supreme Court
was not simply reviewing the decision of another
court. It was instead weighing, for the first time, all
of the mitigating and aggravating evidence in
McKinney’s case to determine whether a death
sentence is warranted. That is the opposite of letting
a final decision remain final. When conducting this
29
weighing, the Arizona Supreme Court was required
to comply with the Constitution as it is understood
today, not as it was understood 20 years ago.
New rules “for the conduct of criminal prosecutions” are “to be applied retroactively to all cases,
state or federal, pending on direct review or not yet
final.” Id. at 328. McKinney’s case is once again on
direct review. He is accordingly entitled to the
benefit of new rules governing the conduct of the
criminal prosecution again him. 4 In the decision
below, the Arizona Supreme Court explicitly refused
to apply current decisional law to McKinney’s case.
It instead held that because McKinney’s conviction
remained “final,” new law did not apply. Pet. App.
3a-4a (internal quotation marks omitted). That is
error.
C. Under Current Law, McKinney Is Entitled
To Resentencing By A Jury.
In Ring, the Court announced a new rule of criminal procedure: The Sixth Amendment requires that
“the specific findings authorizing the imposition of
the sentence of death be made by the jury.” 536 U.S.
at 598, 609 (internal quotation marks omitted); see
Schriro v. Summerlin, 542 U.S. 348, 353-354 (2004)
(Ring requires “a jury rather than a judge find the
essential facts bearing on punishment.”). “If a State
makes an increase in a defendant’s authorized
4
Because McKinney’s case is on direct review, he is entitled to
the benefit of new rules of federal law announced in other cases,
and he is entitled to seek a new rule of law in his case. He is
also entitled to the benefit of new rules of state constitutional
law. See Slemmer, 823 P.2d at 49.
30
punishment contingent on the finding of a fact, that
fact—no matter how the State labels it—must be
found by a jury beyond a reasonable doubt.” Ring,
536 U.S. at 602.
In Hurst, the Court reaffirmed its ruling in Ring,
holding that Florida’s death penalty scheme, which
“does not require the jury to make the critical findings necessary to impose the death penalty,” was
inconsistent with the Sixth Amendment. 136 S. Ct.
at 622. Instead, the “Sixth Amendment requires a
jury, not a judge, to find each fact necessary to
impose a sentence of death.” Id. at 619; see also
United States v. Haymond, 139 S. Ct. 2369, 2377
(2019) (plurality op.) (reiterating that Ring prohibits
“imposition of [the] death penalty based on judicial
factfinding”). As Justice Gorsuch explained in Haymond, the failure to have the jury make the findings
necessary to increase a defendant’s sentence not only
“infringe[s] the rights of the accused; it also divest[s]
the people at large * * * of their constitutional authority to set the metes and bounds of judicially
administered criminal punishments.” Id. at 2378-79
(internal quotation marks omitted).
Under Arizona’s capital sentencing scheme, the
death penalty cannot be imposed without a finding
that the mitigating evidence does not outweigh the
aggravating evidence. See State v. Ring, 65 P.3d
915, 943 (Ariz. 2003). The first step in the weighing
process is to make findings regarding the existence of
mitigating and aggravating circumstances. See State
v. Hedlund, 431 P.3d 181, 184 (Ariz. 2018) (jurors
must weigh the quality and significance of mitigating
evidence they have found to exist), petition for cert.
filed, No. 19-5247 (July 18, 2019). Here, it was the
31
sentencing judge—not the jury—that made findings
related to the mitigating and aggravating evidence.
See Pet. App. 178a-184a, 187a-192a (finding aggravating and mitigating circumstances). For that
reason alone, Ring and Hurst dictate that McKinney
is entitled to resentencing by a jury. See Murdaugh
v. Ryan, 724 F.3d 1104, 1115 (9th Cir. 2013) (concluding that “the existence or absence of a mitigating
circumstance” is “a finding of fact upon which the
increase of the defendant’s authorized punishment
[is] contingent” (internal quotation marks and alteration omitted)).
The Arizona Supreme Court further erred, moreover, by weighing the mitigating and aggravating
evidence in McKinney’s case, rather than remanding
so that a jury could conduct this weighing. In Hurst,
the Court examined Florida’s capital sentencing
scheme, which—like Arizona’s capital sentencing
scheme—permitted a judge to find that “there are
insufficient mitigating circumstances to outweigh the
aggravating circumstances.” 136 S. Ct. at 622 (internal quotation marks omitted). The Court described this inquiry as a finding of “fact[ ]” that is
necessary to make the defendant eligible for the
death penalty. Id. (internal quotation marks omitted).
The Arizona statute at issue in this case similarly
instructs the Arizona Supreme Court to affirm a
death sentence if it “finds that the mitigation is not
sufficiently substantial to warrant leniency.” Ariz.
Rev. Stat. Ann. § 13-755(B).5 This finding of fact is
5
Following the Court’s decision in Ring, the Arizona legislature
ended the Arizona Supreme Court’s independent review of
32
an essential prerequisite for the imposition of a
death sentence, and it therefore must be made by a
jury under Ring and Hurst. See Murdaugh, 724 F.3d
at 1115 (describing determination under Arizona law
that “there are no mitigating circumstances sufficiently substantial to call for leniency” as a finding of
fact that must be made by the jury).6 The Arizona
Supreme Court violated that basic constitutional
requirement in McKinney’s case. It is no excuse that
Ring and Hurst had yet to be decided the first time
that the Arizona Supreme Court weighed the aggravating and mitigating evidence in McKinney’s case.
As the Court made clear in Magwood v. Patterson,
561 U.S. 320 (2010), an “error made a second time is
capital sentences for murders committed after August 1, 2002.
State v. Martinez, 189 P.3d 348, 361 (Ariz. 2008). Instead, a
jury must determine whether the death penalty is warranted,
and the Arizona Supreme Court reviews the jury’s decision for
an abuse of discretion. See Ariz. Rev. Stat. Ann. § 13-756.
Section 13-755 continues to apply to convictions for murders
committed before August 1, 2002. See State v. Prince, 250 P.3d
1145, 1168 (Ariz. 2011).
6
The Arizona Supreme Court has concluded that Ring does not
apply to the weighing of mitigating and aggravating evidence
because that is a “sentencing decision” rather than a “fact
question.” Hedlund, 431 P.3d at 184 (internal quotation marks
omitted). As this Court explained in Ring, however, the
relevant question is not “how the State labels” a particular
determination, but whether the “State makes an increase in a
defendant’s authorized punishment contingent on the finding of
a fact.” 536 U.S. at 602. Here, the State requires a finding that
the mitigating evidence does not outweigh the aggravating
evidence in order to impose the death penalty. That is a factual
determination for the jury.
33
still a new error.” Id. at 339. The decision below
should be reversed.7
II. CORRECTION
OF
EDDINGS
ERROR
REQUIRES RESENTENCING IN THE TRIAL
COURT.
Regardless of whether old or new law applies to the
correction of the Eddings error in McKinney’s sentence, the Arizona Supreme Court erred by refusing
to remand McKinney’s case for resentencing in the
trial court. This Court has long recognized that
when a sentencer fails to consider all relevant mitigating evidence, as required by Eddings, the remedy
is resentencing in the trial court. The Arizona
Supreme Court disregarded that precedent, requiring reversal of the decision below.
A. The Arizona Courts’ Failure To Consider
Mitigating Evidence Of McKinney’s PTSD
Violated Eddings.
For over three decades, Eddings has required the
consideration of all relevant mitigating evidence
before the death penalty can be imposed. Eddings
has its roots in two plurality decisions of this Court.
In Woodson v. North Carolina, 428 U.S. 280 (1976), a
plurality of the Court held that the “respect for
7
The error is not harmless, and the State did not assert
otherwise in its brief in opposition. See Sup. Ct. R. 15.2 (issues
not raised in brief in opposition are waived); see also Pet. at 23
n.4; Opp. Br. at 5-7. As the Ninth Circuit held, “McKinney’s
evidence of PTSD resulting from sustained, severe childhood
abuse would have had a substantial impact on a capital sentencer who was permitted to evaluate and give appropriate
weight to it as a nonstatutory mitigating factor.” Pet. App. 60a.
34
humanity underlying the Eighth Amendment”
requires “consideration of the character and record of
the individual offender” as a “constitutionally indispensable part of the process of inflicting the penalty
of death.” Id. at 304 (plurality op.). A plurality of
the Court reiterated that conclusion in Lockett v.
Ohio, 438 U.S. 586 (1978), explaining that the
“Eighth and Fourteenth Amendments require that
the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or
record.” Id. at 604 (plurality op.) (footnote and
emphasis omitted).
In Eddings, the Court adopted the reasoning of the
Woodson and Lockett pluralities, concluding that a
capital sentencer may not “refuse to consider, as a
matter of law, any relevant mitigating evidence.”
455 U.S. at 114. Applying that rule to the case
before it, the Court reversed a state court decision
that had refused under state law to consider mitigating evidence of the defendant’s “troubled youth” and
resulting “emotional disturbance.” Id. at 107-109.
The Court explained that “the rule in Lockett is the
product of a considerable history reflecting the law’s
effort to develop a system of capital punishment at
once consistent and principled but also humane and
sensible to the uniqueness of the individual.” Id. at
110.
In determining McKinney’s sentence during his
initial trial and direct review proceedings, both the
trial court and the Arizona Supreme Court refused
as a matter of law to consider mitigating evidence of
McKinney’s PTSD. In doing so, they violated Eddings. The trial judge in McKinney’s case accepted
35
his PTSD diagnosis, but considered only whether
McKinney’s PTSD “affected” or “impaired” his conduct in committing the crimes at issue. See Pet. App.
187a-191a. Concluding that McKinney’s PTSD did
not affect his conduct, the sentencing judge weighed
only “what he concluded were legally relevant aggravating and mitigating circumstances,” id. at 29a, in
clear violation of Eddings. The Arizona Supreme
Court committed the same error on appeal: It too
refused, as a matter of law, to consider the mitigating evidence of McKinney’s PTSD. See id. at 161a162a. That is why the Ninth Circuit, sitting en banc,
found Eddings error. Because of these failings, no
sentencer has ever considered the totality of McKinney’s mitigating evidence in deciding whether to
sentence him to death.
The State’s reaction to the Ninth Circuit’s decision
compounded the problem instead of resolving it. At
the State’s request, the Arizona Supreme Court
attempted to cure the Eddings error by conducting a
new independent review of McKinney’s death sentence. See id. at 3a-4a. But in Arizona, “sentencing
authority in all criminal cases, and especially capital
cases,” is placed “with the trial judge.” State v. Bible,
858 P.2d 1152, 1211 (Ariz. 1993) (describing Arizona’s sentencing scheme in effect at that time). The
Arizona Supreme Court conducts its independent
review of capital cases “as an appellate court, not as
a trial court.” State v. Rumsey, 665 P.2d 48, 55 (Ariz.
1983), aff’d, Arizona v. Rumsey, 467 U.S. 203, 210
(1984) (noting that the Arizona Supreme Court has
described its role as “strictly that of an appellate
court, not a trial court”).
36
As set forth below, even under the law in effect at
the time McKinney’s conviction first became final,
appellate review is insufficient to correct Eddings
errors. Because the Arizona Supreme Court is an
appellate court, it was unable to cure the Eddings
error in this case. It was instead required to remand
McKinney’s case for resentencing in the trial court.
It did not do so, and its decision should be reversed.
B. This Court Has Long Held That Eddings
Error Requires Resentencing In The Trial
Court.
This Court decided Eddings in 1982. In the years
following its decision in Eddings—and well before
McKinney’s conviction first became final—the Court
identified Eddings errors in a number of capital
cases. The Court repeatedly held that the proper
remedy for those Eddings errors was a new sentencing proceeding in the trial court. The Arizona Supreme Court erred by failing to follow those straightforward precedents.8
In Skipper v. South Carolina, 476 U.S. 1 (1986), for
example, the Court determined that the trial court’s
exclusion of evidence of the defendant’s good behavior while awaiting trial had violated Eddings. See id.
at 4. The Court accordingly vacated the defendant’s
death sentence, permitting the State to seek to
impose the death penalty again, “provided that it
8
Regardless of whether the Court looks to the law prior to
1996—when McKinney’s conviction initially became final—or to
current law to determine the remedy for the Eddings error in
this case, it is clear that the only appropriate remedy is resentencing in the trial court. This Court’s precedents establishing
this remedy long predate McKinney’s original conviction.
37
does so through a new sentencing hearing at which
petitioner is permitted to present any and all relevant mitigating evidence.” Id. at 8 (emphasis added).
In Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002), the Court found an Eddings violation
based on “the absence of instructions informing the
jury that it could consider and give effect to the
mitigating evidence of [the defendant’s] mental
retardation and abused background.” Id. at 328. To
correct this error, the Court held that its “reasoning
in Lockett and Eddings thus compels a remand for
resentencing so that we do not risk that the death
penalty will be imposed in spite of factors which may
call for a less severe penalty.” Id. (emphasis added
and internal quotation marks omitted).
In Mills, Maryland’s sentencing scheme permitted
“a single juror’s holdout vote” to prevent consideration of mitigating evidence. 486 U.S. at 375. Concluding that this scheme violated Eddings, the Court
held that only one remedy was appropriate: “Because the sentencer’s failure to consider all of the
mitigating evidence risks erroneous imposition of the
death sentence,” the Court held, “it is our duty to
remand this case for resentencing.” Id. (emphasis
added and brackets omitted) (quoting Eddings, 455
U.S. at 117 n.* (O’Connor, J., concurring)); see also
McKoy v. North Carolina, 494 U.S. 433, 435, 442-443
(1990) (reiterating that under Mills, resentencing is
required).
In Hitchcock, moreover, the Court evaluated a case
strikingly similar to this one: There, at sentencing,
the judge permitted the introduction of mitigating
evidence of the defendant’s “family background and
38
his capacity for rehabilitation.” 481 U.S. at 397-398.
The judge, however, interpreted Florida law to
prohibit consideration of mitigating circumstances
not specifically enumerated in the relevant state
statute. The judge thus instructed the jury not to
consider this mitigating evidence, and the judge
himself refused to consider it in sentencing the
defendant to death. Id. at 398-399.
On review, the Court unanimously held that the
exclusion as a matter of law of “mitigating evidence
of the sort at issue here renders the death sentence
invalid.” Id. at 399. In fashioning a remedy, the
Court did not suggest that the error could be corrected through an appellate proceeding. It instead
instructed that if the State sought to again impose
the death penalty, it could do so only “through a new
sentencing hearing at which petitioner is permitted
to present any and all relevant mitigating evidence
that is available.” Id. (emphasis added and internal
quotation marks omitted).
This Court’s precedent is clear: Where a court
commits Eddings error, the remedy is resentencing
in the trial court. As the Court explained in Penry,
“it is not enough simply to allow the defendant to
present mitigating evidence to the sentencer. The
sentencer must also be able to consider and give
effect to that evidence in imposing sentence.” 492
U.S. at 319. That has never occurred in McKinney’s
case. McKinney therefore is entitled to resentencing
39
in the trial court to correct the Eddings error in his
death sentence.9
C. This Court Has Made Clear That Only A
Trial-Level Sentencer Can Provide The
Consideration Eddings Requires.
In addition to repeatedly holding that correction of
Eddings error requires resentencing in the trial
court, the Court has explained why this is so: In
Caldwell, the Court concluded that a capital sentencer must have the opportunity to see and hear the
evidence and arguments firsthand in order to determine whether a death sentence is warranted. See
472 U.S. at 330-331. The Arizona Supreme Court
violated that precedent by failing to remand McKinney’s case for resentencing.
In Caldwell, comments made by the prosecutor
during sentencing encouraged the jury to believe
that the appellate court—rather than the jury—had
ultimate responsibility for determining the appropriateness of a death sentence. See id. at 323. The
Court concluded that in light of those comments, the
risk of an erroneously imposed death sentence was
9
It is McKinney’s position that under Arizona law, if he is
resentenced in the trial court, he is entitled to resentencing by a
jury. See Styers, 254 P.3d at 1137 (Hurwitz, V.C.J., dissenting)
(noting State’s concession that Ring applies in resentencing
proceedings); see also Ariz. Rev. Stat. Ann. § 13-752(O) (“In any
case that requires sentencing or resentencing in which the
defendant has been convicted of an offense that is punishable
by death and in which the trier of fact was a judge or a jury
that has since been discharged, the defendant shall be sentenced or resentenced pursuant to this section by a jury that is
specifically impaneled for this purpose.”).
40
simply too great to comport with the Eighth
Amendment. See id. at 341.
In reaching this result, the Court relied on its decision in Eddings. Under Eddings, the Court explained, a capital defendant has the constitutional
right to consideration of mitigating evidence. Id. at
330-331. And in Eddings, the Court “clearly envisioned” that consideration of this mitigating evidence
“would occur among sentencers who were present to
hear the evidence and arguments and see the witnesses,” rather than by an appellate court. Id.
Permitting appellate sentencing without prior consideration of mitigating evidence in the trial court,
the Court stated, would “deprive” the defendant of
his “right to a fair determination of the appropriateness of his death.” Id. at 330. That is because an
“appellate court, unlike a capital sentencing jury, is
wholly ill-suited to evaluate the appropriateness of
death in the first instance.” Id.
The “inability to confront and examine the individuality of the defendant,” the Court continued, is
“particularly devastating” where the defendant
presents nonstatutory mitigating evidence.
Id.
(emphasis added). Moreover, “[w]hatever intangibles
a jury might consider in its sentencing determination, few can be gleaned from an appellate record.”
Id. After all, the “mercy plea is made directly to the”
sentencer, and there “is no appellate mercy.” Id. at
331 (alterations and internal quotation marks omitted); cf. Penry, 492 U.S. at 328 (explaining that “full
consideration of evidence that mitigates against the
death penalty” allows the sentencer “to give a reasoned moral response to the defendant’s background,
41
character, and crime” (internal quotation marks
omitted)).
Caldwell makes clear that the Arizona Supreme
Court’s appellate review of McKinney’s constitutionally deficient sentencing hearing did not satisfy
Eddings.
The Arizona Supreme Court is not
equipped to evaluate and weigh mitigating evidence
in the first instance: It cannot assess the “intangibles” of the testimony from McKinney’s sister and
aunt; it cannot take evidence to understand the
import of McKinney’s PTSD diagnosis beyond its
causal relationship to the crimes at issue; and
McKinney can hardly make a plea for mercy on a
cold record more than 20 years after the sentencing
proceeding occurred. As Justice Thomas explained
in his concurrence in Glossip v. Gross, 135 S. Ct.
2726 (2015), “the choice between life and death” is
“left to the jurors and judges who sit through the
trial” because they “have an opportunity to assess
the credibility of the witnesses, to see the remorse of
the defendant, [and] to feel the impact of the crime
on the victim’s family.” Id. at 2751 (Thomas, J.,
concurring). To correct the Eddings error in this
case, the Arizona Supreme Court was required to
remand McKinney’s case to the trial court for resentencing.
D. Cabana And Clemons Do Not Apply To
Mitigating Evidence.
Prior to Ring, appellate courts were permitted to
make certain factual findings in death penalty cases.
In Cabana v. Bullock, 474 U.S. 376 (1986), the Court
held that an appellate court could determine whether the defendant “in fact killed, attempted to kill, or
intended that a killing take place,” as required by
42
Enmund v. Florida, 458 U.S. 782, 797 (1982). See
Cabana, 474 U.S. at 386. And in Clemons v. Mississippi, 494 U.S. 738 (1990), the Court held that an
appellate court may reweigh the evidence where a
death sentence was imposed in part based on an
invalid or improperly defined aggravating circumstance. See id. at 741.
Neither Cabana nor Clemons governs the outcome
here. Cabana applies only to the determination that
a defendant in fact killed, attempted to kill, or intended to kill the victim—a single, threshold determination whether a defendant falls within the class
of individuals eligible for the death penalty. See 474
U.S. at 386 (explaining that this determination is
“different in a significant respect” from “the general
exercise of sentencing discretion”). It does not apply
to the consideration of mitigating and aggravating
evidence in a death penalty case.
Clemons likewise does not apply to the consideration of mitigating evidence. Erroneously including
an invalid aggravating circumstance is fundamentally different from erroneously excluding a relevant
mitigating circumstance. In the first instance, the
appellate court is asked to subtract something from
the record; in the second, the court must weigh
information never considered at all.
As the Court recognized in Clemons—citing Caldwell—“appellate courts may face certain difficulties
in determining sentencing questions in the first
instance.” 494 U.S. at 754. Those difficulties are
present, as Caldwell explains, where an appellate
court attempts to evaluate mitigating evidence that
has not been considered previously in the trial court.
See 472 U.S. at 330-331. In McKinney’s case, no
43
sentencer has ever weighed the mitigating evidence
of McKinney’s PTSD, along with his other mitigating
evidence, against the aggravating evidence in his
case. The Arizona Supreme Court cannot fulfill that
role. Under this Court’s longstanding precedent,
McKinney is entitled to present that evidence,
through live testimony, in the trial court.
More fundamentally, both Cabana and Clemons
rely on the conclusion that a jury need not “make the
findings prerequisite to imposition” of a death sentence. Clemons, 494 U.S. at 745; see also Cabana,
474 U.S. at 385-386. That logic has since been
rejected in Ring and Hurst. Compare Hurst, 136 S.
Ct. at 623 (overruling Spaziano v. Florida, 468 U.S.
447 (1984)), with Clemons, 494 U.S. at 746 (relying
on Spaziano for the proposition that a jury is not
necessary to impose the death penalty). Regardless
of whether the Court is operating under old law or
new, it should not extend the flawed reasoning of
Cabana and Clemons to this case, which is not
governed by either of those decisions.
E. The Record Is Insufficient To Permit Individualized Consideration Of The Mitigating Evidence In McKinney’s Case.
Even if appellate courts could consider previously
excluded mitigating evidence in some death penalty
cases, the Arizona Supreme Court was required to
remand for a new sentencing hearing in McKinney’s
case. Both the trial court and the Arizona Supreme
Court on review applied an unconstitutional “causal
nexus” test, which limited consideration of the mitigating evidence in McKinney’s case to evidence
determined to be causally connected to his crimes.
The record evidence with respect to McKinney’s
44
PTSD—including the psychologist’s testimony—is
infected by that legal error. And even if that were
not a problem, the PTSD evidence in this case is over
two decades old, does not comport with current
scientific understanding, and cannot support the
imposition of a death sentence.
1. This past Term, the Court recognized that state
courts “may not rely on any arguments or evidence
tainted” by legal error when reassessing whether a
defendant may be executed. Madison, 139 S. Ct. at
731. Where “evidence in [the] record,” including
expert reports and testimony, “expressly reflects an
incorrect view” of the law or “might have implicitly
rested on those same misjudgments,” additional
factfinding is required. Id.
In this case, there is a meaningful risk that the
evidentiary choices by defense counsel, the State,
and the sentencing judge were influenced by the
unconstitutional causal nexus test applied by the
Arizona courts. Arizona courts applied this test for
over 15 years, including during the period in which
McKinney was sentenced. See Pet. App. 37a-47a.
Accordingly, defense counsel and prosecutors at
McKinney’s sentencing hearing structured their
presentation of evidence to address this test.
Defense counsel, for example, elicited testimony
from the psychologist who diagnosed McKinney with
PTSD to determine whether there was a relationship
between McKinney’s PTSD and the crimes at issue.
See, e.g., JA124-126, 129-130. Indeed, the psychologist went so far as to speculate that a physical altercation involving Mertens would have triggered
McKinney’s PTSD by reminding him of his stepmother. Id. at 121-125. And once his PTSD was
45
triggered, the psychologist repeatedly emphasized,
McKinney would act in a “poorly-judged” way. Id. at
121-122; see also id. at 110-111. Prosecutors in turn
argued that the “key question” for the judge was how
McKinney’s PTSD “affect[ed] him at the time of these
two murders[.]” Id. at 286. And the court itself
elicited testimony from the psychologist to explore
the relationship between McKinney’s crimes and his
PTSD. See id. at 256 (“Q. So the possible fighting
commotion triggered then the impulsive or unthinking response to the, the acts or the actions that were
going on? A. Yes.”). The record of McKinney’s
original sentencing proceeding is tainted by this
focus on the causal relationship between McKinney’s
PTSD and the murders.
In the proceedings below, the Arizona Supreme
Court explicitly relied on the psychologist’s testimony that McKinney’s PTSD would cause him to “withdraw from a situation in which he might encounter
violence” when evaluating whether a death sentence
was warranted. Pet. App. 5a-6a (alterations and
internal quotation marks omitted). But this is
precisely the testimony that was elicited to determine
whether McKinney’s PTSD was causally connected to
his crime. The Arizona Supreme Court’s continued
reliance on this tainted evidence undermines
McKinney’s right under Eddings to consideration of
all relevant mitigating evidence. For this reason as
well, McKinney is entitled to a new sentencing
proceeding.
2. The record evidence of McKinney’s PTSD is
tainted in yet another way. The psychologist who
testified at McKinney’s sentencing proceeding relied
on a scientific understanding of PTSD that is now
46
more than 20 years old. This scientific understanding has improved significantly in the past two decades.
The Arizona Supreme Court’s continuing
reliance on expert testimony that is almost certainly
incorrect by today’s standards is inconsistent with
Eddings’ direction that courts must consider all
relevant mitigating evidence.
PTSD was first introduced as a psychiatric disorder in the third edition of the American Psychiatric
Association’s Diagnostic and Statistical Manual of
Mental Disorders (“DSM”) in 1980, just 13 years
before McKinney’s sentencing. See Am. Psychiatric
Ass’n, DSM §§ 308.30, 309.81 (3d ed. 1980). In the
ensuing decades, significant research has altered the
way psychiatrists understand childhood trauma and
its resulting effects on mental health.
Since McKinney’s sentencing, the American Psychiatric Association has twice revised the definition
of PTSD in the DSM. See Am. Psychiatric Ass’n,
DSM § 309.81 (4th ed. 1994); Am. Psychiatric Ass’n,
DSM § 309.81 (5th ed. 2013). With each revision,
“the criteria for PTSD have changed substantially.”
Anushka Pai et al., Posttraumatic Stress Disorder in
the DSM-5: Controversy, Change, and Conceptual
Considerations, 7 Behav. Sci., Issue 1, no. 7, 2017, at
1. The current DSM now recognizes that PTSD may
lead to “reckless or self-destructive behavior,” id. at
4, contrary to the Arizona Supreme Court’s continuing emphasis on the psychologist’s testimony that
McKinney’s PTSD would cause him to withdraw
from violent situations. Pet. App. 5a-6a.
These changes in the scientific understanding of
PTSD undermine the reliability of the Arizona
Supreme Court’s weighing of the mitigating and
47
aggravating evidence in McKinney’s case. See id.
McKinney should be permitted to present new evidence and expert testimony regarding his PTSD in a
new sentencing proceeding. See Hitchcock, 481 U.S.
at 399 (remanding to permit defendant to “present
any and all relevant mitigating evidence that is
available” (internal quotation marks omitted)); cf.
Moore v. Texas, 137 S. Ct. 1039, 1048-49 (2017)
(encouraging States to look to the most recent versions of “leading diagnostic manuals” in assessing
intellectual disability for purposes of death penalty
eligibility). That is, after all, the purpose of Eddings:
To permit full consideration of the mitigating evidence in a particular, factbound case. For this
reason too, McKinney is entitled to resentencing in
the trial court.10
*
*
*
There are two constitutional errors in McKinney’s
death sentence. In 1993, the sentencing judge re-
10
The Arizona Supreme Court’s failure to remand for resentencing in the trial court to correct the Eddings error in this
case is not subject to harmless error analysis because “it would
be wholly inappropriate for an appellate court * * * to substitute its own moral judgment” for that of the capital sentencer.
Nelson v. Quarterman, 472 F.3d 287, 314-315 (5th Cir. 2006)
(refusing to apply harmless error analysis to Eddings error
because of the nature of the error). Even if harmless error
analysis applies, however, the State did not ever argue in its
brief in opposition that the failure to remand to the sentencing
court is harmless. See Sup. Ct. R. 15.2 (issues not raised in
brief in opposition are waived); see also supra n.7. Nor would it
benefit from doing so, as the Ninth Circuit has already concluded that the mitigating evidence in this case “would have had a
substantial impact on a capital sentencer.” Pet. App. 60a.
48
fused as a matter of law to consider mitigating
evidence of McKinney’s PTSD. That error, which
requires resentencing in the trial court, has never
been corrected. In 2018, the Arizona Supreme Court
introduced a second error: It weighed the mitigating
and aggravating evidence in McKinney’s case under
20-year-old law, without considering whether current
law requires resentencing by a jury. Both errors are
grave, and both require reversal. McKinney seeks no
more than any other capital defendant: the opportunity to present mitigating evidence in the trial
court, and for that evidence to be considered by the
sentencer, before he is sentenced to death. The
Court should afford McKinney that opportunity.
49
CONCLUSION
For the foregoing reasons, the judgment of the Arizona Supreme Court should be reversed.
Respectfully submitted,
AMY L. MARSHAK
JONATHAN L. BACKER
JOSHUA A. GELTZER
MARY B. MCCORD
INSTITUTE FOR
CONSTITUTIONAL
ADVOCACY AND
PROTECTION
Georgetown University
Law Center
600 New Jersey Ave., NW
Washington, D.C. 20001
(202) 661-6728
NEAL KUMAR KATYAL
Counsel of Record
KATHERINE B. WELLINGTON
ERIN R. CHAPMAN
MICHAEL J. WEST
HOGAN LOVELLS US LLP
555 Thirteenth St., N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
SHARMILA ROY
P.O. Box 441
Laveen, AZ 85339
(602) 930-2690
Counsel for Petitioner
AUGUST 2019
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.