Reply Brief — Craig M. Wood, Petitioner v. Missouri

Supreme Court briefMar 18, 2020

Ask Donna

What actually matters in this document.

Text

No. 19-967

IN THE

CRAIG M. WOOD,

Petitioner,

STATE OF MISSOURI,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Missouri

REPLY BRIEF FOR PETITIONER

Rosemary Percival

OFFICE OF THE MISSOURI

STATE PUBLIC DEFENDER

920 Main St.

Suite 500

Kansas City, MO 64105

(816) 889-7699

Tejinder Singh

Counsel of Record

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

tsingh@goldsteinrussell.com

Counsel for Petitioner

CAPITAL CASE

TABLE OF CONTENTS

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

REPLY BRIEF FOR PETITIONER ............................ 1

CONCLUSION ............................................................ 8

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) .................................................. 1

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) .............................................. 6

Caldwell v. Mississippi,

472 U.S. 320 (1985) .......................................... 3, 4, 5

California v. Ramos,

463 U.S. 992 (1983) .............................................. 3, 4

Clemons v. Mississippi,

494 U.S. 738 (1990) .................................................. 1

Eddings v. Oklahoma,

455 U.S. 104 (1982) ...................................... 1, 2, 5, 7

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) .............................................. 6

Ford v. Wainwright,

477 U.S. 399 (1986) .................................................. 4

Hurst v. Florida,

136 S. Ct. 616 (2016) ............................................ 1, 2

Kansas v. Carr,

136 S. Ct. 633 (2016) ................................................ 5

McKinney v. Arizona,

140 S. Ct. 702 (2020) ........................................ 1, 2, 6

Ring v. Arizona,

536 U.S. 584 (2002) .............................................. 1, 2

Woodson v. North Carolina,

428 U.S. 280 (1976) .................................................. 3

iii

Constitutional Provisions

U.S. Const. amend. VI ....................................... passim

U.S. Const. amend. VIII .................................... passim

REPLY BRIEF FOR PETITIONER

The question presented is “[w]hether the Constitution requires that a jury, rather than a judge, weigh

the aggravating and mitigating circumstances to determine whether a defendant may be sentenced to

death.” Pet. i. The question was deliberately phrased

broadly enough to encompass two distinct arguments

petitioner made below: First, that the Sixth Amendment requires the jury to conduct weighing under the

line of cases including Apprendi v. New Jersey, 530

U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002),

and Hurst v. Florida, 136 S. Ct. 616 (2016); and second, that the Eighth Amendment requires the same

result for the reasons stated in Justice Breyer’s concurrences in Ring and Hurst, i.e., that capital punishment is principally about retribution, and that a jury

should be the one to make such value judgments. See

Ring, 536 U.S. at 614 (Breyer, J., concurring in the

judgment).

After the petition was filed, this Court decided

McKinney v. Arizona, 140 S. Ct. 702 (2020), holding

that if a capital sentence is found to be invalid because

the sentencing court failed to properly consider mitigating evidence in violation of Eddings v. Oklahoma,

455 U.S. 104 (1982), an appellate court considering the

matter on collateral review could re-weigh the aggravating and mitigating circumstances to uphold the

sentence, per Clemons v. Mississippi, 494 U.S. 738

(1990). The Court rejected the argument that Ring and

Hurst had overruled Clemons, stating in the process

that the Sixth Amendment does not require a jury to

weigh aggravating and mitigating circumstances. See

McKinney, 140 S. Ct. at 707.

The brief in opposition (Opp.) emphasizes McKinney, arguing that it definitively resolved the Sixth

Amendment issue in this case. Opp. 1, 5-6. Because of

the differences in the procedural posture (McKinney

being on collateral review, and considering only the

propriety of appellate reweighing, as opposed to initial

sentencing), that statement is not clearly correct. The

petitioner in McKinney argued that a court conducting

a resentencing must apply current law, and that correction of an Eddings error requires resentencing. The

underlying question of what the Sixth Amendment requires during the initial sentencing was not front-andcenter. And indeed, the Court in McKinney stressed

that the issue before it was “narrow”—perhaps to

avoid prejudicing cases like this one. 140 S. Ct. at 706.

For the reasons stated in the petition, the better reading of Ring and Hurst is that they do not permit a sentencing scheme like Missouri’s—which allows a judge

to sentence a defendant to death after a jury deadlock.

But assuming arguendo that McKinney did resolve the

Sixth Amendment issue (or could be extended to do so),

that still leaves the Eighth Amendment question on

the table.

Analytically, the Eighth Amendment issue turns

on a different axis than the Sixth Amendment issue.

While the Sixth Amendment inquiry focuses principally on whether weighing aggravating and mitigating

circumstances constitutes a factual inquiry that could

increase the defendant’s sentence, the Eighth Amendment question is about the jury’s role as the voice for

the conscience of the community in capital cases. See

Pet. 30-31 (collecting cases). That role matters

whether the weighing step is a factual inquiry or a

value judgment—indeed, if respondent and the court

below are correct that the weighing step is about values or mercy, then the jury is by far the better decision-maker. Moreover, while Sixth Amendment rules

apply regardless of the type of sentencing (capital or

otherwise), Eighth Amendment cases have long recognized that death is different, and that capital cases accordingly require unique procedural safeguards. See,

e.g., Caldwell v. Mississippi, 472 U.S. 320, 329 (1985)

(“This Court has repeatedly said that under the

Eighth Amendment ‘the qualitative difference of death

from all other punishments requires a correspondingly

greater degree of scrutiny of the capital sentencing determination.’”) (quoting California v. Ramos, 463 U.S.

992, 998-99 (1983)); see also Woodson v. North Carolina, 428 U.S. 280, 287, 303-04 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

Respondent says almost nothing about the Eighth

Amendment issue, addressing it in a single paragraph.

Opp. 14. Respondent argues first that petitioner did

not raise this issue “as a separate ground.” Ibid. It is

unclear what that means, but there is no doubt that

the Eighth Amendment argument is properly before

the Court. It was preserved below, Pet. App. 41a-42a,

included within the question presented (Pet. 4), discussed in the petition (at 4, 9, 24-25, 30-33), and would

be outcome-determinative if the Court decides it in petitioner’s favor. Indeed, respondent does not argue otherwise.

Respondent argues next that the Eighth Amendment is only about the substance of punishments, and

not about procedure. Opp. 14. That is incorrect. In Ramos, the Court said the opposite:

In ensuring that the death penalty is not

meted out arbitrarily or capriciously, the

Court’s principal concern has been more with

the procedure by which the State imposes the

death sentence than with the substantive factors the State lays before the jury as a basis

for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty.

463 U.S. at 999. And in Caldwell, the Court held that

“it is constitutionally impermissible to rest a death

sentence on a determination made by a sentencer who

has been led to believe that the responsibility for determining the appropriateness of the defendant’s

death rests elsewhere.” 472 U.S. at 328-29. The Court

noted that “many of the limits that this Court has

placed on the imposition of capital punishment are

rooted in a concern that the sentencing process should

facilitate the responsible and reliable exercise of sentencing discretion.” Id. at 329 (collecting cases). That

is exactly the sort of procedural concern implicated by

this case: juries in Missouri are told that if they do not

agree upon a sentence, the judge will choose for

them—and that assurance may make an ambivalent

jury more likely both to find aggravating factors and

to kick the can to the judge.

Independently, respondent’s argument obscures

the core of the issue. Line-drawing between substance

and procedure does not matter because the Eighth

Amendment’s substantive requirements go hand-inglove with procedural safeguards. For example, the

Eighth Amendment prohibits the execution of the

mentally incompetent. See Ford v. Wainwright, 477

U.S. 399, 401 (1986). That guarantee would be meaningless without competency hearings. The Eighth

Amendment also prohibits death sentences absent

consideration of mitigating evidence. See Eddings, 455

U.S. at 113-15. And it prohibits sentencing procedures

that minimize the jury’s sense of the importance of its

role. See Caldwell, 472 U.S. at 329-30. Taking these

propositions together, petitioner’s contention is that

the jury must consider mitigating circumstances in

the first instance, and that—at a minimum—a judge

should not have the power to choose death when, as

here, the jury does not.

Respondent’s final contention about the Eighth

Amendment is that this Court rejected petitioner’s argument in Kansas v. Carr, 136 S. Ct. 633 (2016). Opp.

14. That is incorrect. In Carr, the question was

whether the Eighth Amendment requires capital-sentencing courts to affirmatively inform the jury that

mitigating circumstances need not be proven beyond a

reasonable doubt. 136 S. Ct. at 642. The Court held

that the answer was “no,” in part, because it was difficult “to apply a standard of proof to the mitigating-factor determination.” Ibid. That is so because “[w]hether

mitigation exists . . . is largely a judgment call (or perhaps a value call),” and whether mitigating circumstances outweigh aggravating ones “is mostly a question of mercy.” Ibid. While that language may be relevant to the Sixth Amendment issue in this case, which

focuses in part on whether the outcome of the weighing step is a factual finding, it has little to say about

the Eighth Amendment argument, which turns on different considerations altogether. Indeed, as explained

above, the value-laden nature of the weighing step is

precisely what makes it particularly well-suited for a

jury.

Although the Eighth Amendment issue has not

produced a separate split among lower courts, this

Court should grant certiorari and decide it in petitioner’s favor. Whether the Constitution requires a

jury to impose a death sentence is undeniably important to inmates and to States, and as the cases

cited in both the petition and the brief in opposition

show, the issue arises frequently. * Respondent does

not dispute the petition’s arguments about the importance of the issue—including that in Missouri, the

deadlock procedure is applied with shocking frequency, and almost always results in a death sentence.

Pet. 7, 20. This case is accordingly similar to other capital cases in which this Court has granted certiorari

despite the lack of a split, including Flowers v. Mississippi, 139 S. Ct. 2228 (2019), and Bucklew v. Precythe,

139 S. Ct. 1112 (2019). Just as this Court granted certiorari in McKinney “[b]ecause of the importance of the

case to capital sentencing in Arizona,” 140 S. Ct. at

706, it should grant certiorari here because of the importance of Missouri’s constitutionally dubious deadlock feature to capital sentencing there.

A focus on the Eighth Amendment argument also

disables the remainder of respondent’s arguments

against certiorari. Respondent’s arguments about the

cases in the split are about the Sixth Amendment

only—and they do not address the core of the issue,

In addition to the cases cited on the split in the petition, respondent cites additional cases holding that juries need not conduct the weighing step under the Sixth Amendment. Opp. 11.

There are reasons that some of these cases were not included in

the petition, mostly having to do with differences between those

States’ capital sentencing schemes and Missouri’s. But those reasons do not matter. All these cases prove that the issue is important: it has been litigated frequently, and States are legislating around it.

which is that States openly disagree about the answer

to the Sixth Amendment question. At a minimum, the

conflict between Missouri and Delaware is acute, as

the court below announced that a decision of the Delaware Supreme Court was “wrongly decided.” Pet.

App. 32a n.12. The flip-flop among jurists in Florida

also highlights that different judges disagree sharply

about what the Constitution requires of capital sentencing schemes. See Pet. 17-18 & n.11. Moreover,

States are legislating around their understanding of

this Court’s decisions—and to the extent any of those

efforts are confused, this Court should clear them up.

See id. at 14 n.10 (documenting changes to Idaho’s

statute).

Respondent’s vehicle arguments are also unpersuasive. Respondent argues first that Missouri’s statute does not “make[] the weighing process a prerequisite to determining death-penalty eligibility.” Opp. 15.

But the weighing process is a prerequisite to imposing

a death sentence. If weighing never happens, then under Eddings, no death sentence can be imposed.

Weighing is accordingly an indispensable component

of capital sentencing—however one might choose to

describe it. Thus, a flaw in the weighing process is

surely enough to trigger Eighth Amendment concerns,

and it ought to raise Sixth Amendment questions, too.

Respondent also argues that the jury found multiple aggravating circumstances. But that is beside the

point because the jury also deadlocked as to punishment. Having considered each and every one of the aggravating circumstances respondent emphasizes, the

jury was unable or unwilling to sentence petitioner to

death. It is only because Missouri’s statutory scheme

requires judges to impose a sentence in deadlocked

cases that petitioner received the ultimate sentence.

This case thus presents an ideal vehicle to decide

whether a State may take such an important question

away from a jury that did not choose death.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,