Legal Issues - Death Penalty

The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”

State v. Gregory

From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.  As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”

Before this fuels great excitement regarding abolishing capital punishment in this country, it’s important to note that Gregory starts off with the following caveat:

Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972)State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979)State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981).[1] And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. 

The Washington Supreme Court is not holding the death penalty “per se unconstitutional.”  Instead, it rules based upon how the state’s capital punishment law is carried out, and finds it is being “imposed in an arbitrary and racially biased manner.”

The administration of the state law by the state violates the state constitution, according to the state supreme court.

State Constitutional Holding Independent From Federal Constitution Application

The Washington Court takes great care to make sure that its ruling is clearly based solely upon its state constitution:

At the very least, article I, section 14 cannot provide for less protection than the Eighth Amendment, and in this case, we interpret it independently from the federal counterpart. Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles. See Long, 463 U.S. at 1041-42.

 

State Constitution vs. Federal Constitution

Some may be surprised that a state supreme court can make a ruling that can withstand United State Supreme Court scrutiny.  Well, aside from some procedural arguments there is the overall reality that state governments do exist independently from the federal government.  As long as a state supreme court reads its state constitution to be more protective than the federal counterpart, its ruling will hold.

This is discussed in its cited case of  Michigan v. Long,463 U.S. 1032, 1041-1042, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), where SCOTUS states:

The principle that we will not review judgments of state courts that rest on adequate and independent state grounds is based, in part, on “the limitations of our own jurisdiction.”  Herb v. Pitcairn, 324 U. S. 117, 125 (1945).

Will Gregory result in more capital punishment challenges being filed before state supreme courts, arguing against their death penalty laws on “adequate and independent state grounds” and not federal constitutional arguments?

Perhaps.  Of some interest, let’s not forget that this month marks the October 2016 anniversary of Hurst and Perry opinions by the Florida Supreme Court insofar as the Florida Death Penalty Law.  Something to ponder.

 

In Fall 2018, SCOTUS will consider two cases that deal with the death penalty:

1. Bucklew v. Precythe

Bucklew v. Precythe, SCOTUS Docket No. 17-8151, asks SCOTUS to consider if the medical condition of a Death Row Inmate can cause the lethal injection method of execution to be “cruel and unusual” punishment in violation of the Eighth Amendment.

Issues Presented

  1. Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended?
  2. Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate?
  3. Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition?

Read the Petition for Writ of Certiorari.

Read the Amicus Curaie Brief filed by the American Civil Liberties Union.

Underlying Facts

Russell Bucklew suffers from a congenital medical condition that may well cause him to hemorrhage during any execution involving lethal injection where he would potentially choke on his own blood.

Mr. Bucklew offers the alternative execution method of death by nitrogen hypoxia.

He also requests that to be informed of the medical qualifications of two executioners (members of the Missouri lethal injection team).  Bucklew alleges they may not have the qualifications necessary for the position of lethal injection executioner.

Oral Argument

Bucklew is scheduled for oral argument on November 6, 2018.

 

 

2.  Madison v. Alabama

Madison v. Alabama, SCOTUS Docket No. 17-7505, asks the Supreme Court to consider whether or not it violates the federal constitution to allow an individual to be executed when he or she cannot remember the crime for which they have been sentenced to death.

Issues Presented

  1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017) (Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring).
  2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?

Underlying Facts

During the 30 years that Vernon Madison has spent on Alabama’s Death Row, he has had several strokes and now suffers from dementia.  Mr. Madison cannot remember his arrest, his trial, much less the underlying crime for which he was convicted.

Read the Petition for Writ of Certiorari.

Read the Amicus Curaie Brief submitted by the American Psychological Association.

Oral Argument

Madison was argued on October 2, 2018.  Read the oral argument transcript here.

The website WildAboutTrial.com promotes itself as providing “the nation’s hottest criminal trial coverage.”   Not only does the site provide background information regarding pending criminal proceedings, it often provides live coverage from the courtroom as things are happening.

Site Shares Live Courtroom Coverage

Today, for instance, they are sharing coverage of the sentencing hearing for Bill Cosby (details provided here).  The hearing is not live but the site is tweeting as things are happening in the Cosby case up in Pennsylvania.

Meanwhile, the site is providing live coverage of the courtroom proceedings in the Illinois trial of Jason Van Dyke.  Watch the live stream.

Markeith Loyd Hearings on WildAboutTrial.com

For those following Terry Lenamon’s defense in the Markeith Loyd trial — including (1) his arguments regarding race and the death penalty and (2) the notice that the defense intends to call former state prosecutor Aramis Ayala as a mitigation witness, if necessary, this site may be of interest.

WildAboutTrial.com has a dedicated web page for the Markeith Loyd proceedings.

While the most recent hearing has yet to be uploaded into their archives, you can watch the June 12, 2018 proceedings.

Read Court Filings in Defense of Markeith Loyd

For more on the Markeith Loyd’s defense, read:

Defense To Call State Attorney Ayala as Mitigation Witness Against Death Penalty in Markeith Loyd Case

 

Florida prosecutor Aramis Ayala took a stand against the death penalty which resulted in Florida Governor Scott removing two dozen cases from her docket. For details, read the media coverage published by the Miami Herald on June 28, 2017, written by Steve Bousquet: “Orlando prosecutor defends stance against death penalty.”

One of the cases in which Ayala served as prosecutor was the homicide case of State of Florida vs. Markeith Loyd.

Lenamon Files Notice: Will Call State Prosecutor Ayala as Defense Mitigation Witness in any Penalty Phase

Now, as part of the defense of Markeith Loyd, Terry Lenamon has filed a motion with the court that announces the intent of the defense to call State Attorney Ayala as a defense witness in the penalty phase so she may testify in the event that Markeith Loyd is convicted of a capital offense. 

State Attorney Ayala, as the elected prosecutor for the Ninth Judicial District, represented the state’s interests from the seeking of the initial grand jury indictments against Markeith Loyd to her determination that the death penalty would not be sought in this case.  (See Motion, page 4).

For details, read:

Full Text of Lenamon’s Motion to Call State Attorney Ayala in Loyd Case

A true and correct copy of the Motion to Call Ayala has been provided as part of the Terence Lenamon Online Library. 

Lenamon Motion Arguing Discrimination Based Upon Race in Florida Death Penalty / Homicide Cases

Another motion of importance was also filed yesterday by Terry Lenamon.  This one, an argument regarding constitutional violations across the State of Florida in death penalty cases based upon racial discrimination.

A true and correct copy of the Motion to Preclude is also available in the Terence Lenamon Online Library.

 

Defense Succeeds in Avoiding Death Penalty; What is Life Sentence in Florida Capital Case?

Terence Lenamon was victorious this week, as a Florida jury refused to sentence Frantzy Jean-Marie to death for the murders of Armstrong Rivere and his girlfriend Stephanie Adams back in March 2013.  For details, read the article written by Charles Rabin and published on July 25, 2018, by the Miami Herald, entitled “Jurors spare life of gang member. He didn’t pull trigger, but will spend life in prison.”

Of note, the description Rabin gives of Terry’s “fiery defense” during the prosecution’s closing arguments, where he “continually lashed out” at statements made by ASA Joshua Weintraub during closing argument.

Terrorist Boyz Trial Ends With Life Sentence

Jean-Marie was found guilty during the first phase of his capital trial that ended last month.  That part of the trial took around four months to complete.  At its conclusion, Jean-Marie was convicted of two counts of first-degree murder; four counts of attempted murder; and the crimes of conspiracy and racketeering.  He was not found guilty by the jury of two murder allegations involving a Terrorist Boyz shooting at a Jumbo’s Restaurant in October 2002.

This week’s decision by the jury concludes the second phase of the capital trial, where the jury decides on sentencing.  As we’ve discussed earlier, Florida law has changed.  Now, the jury must unanimously agree on capital punishment before the death penalty can be sentenced by the judge.  See, Florida Has New Death Penalty Law in March 2017.

What is a Life Sentence in Florida Capital Case?

Now that the jury has made its decision, what does this mean insofar as punishment?  The victory here is that the state’s request for death was not granted.  There will be no death penalty in this case.

However, as Terry explains in the Miami Herald piece, Frantzy Jean-Marie will never be free from incarceration.  He will serve a life sentence, which means spending the rest of his days behind bars in a Florida correctional facility.

As explained by the Florida Department of Corrections, “Persons receiving a life sentence for crimes committed on or after October 1, 1995, will serve a life sentence.” More specifically, from their site:

Parole in Florida was eliminated for non-capital felonies committed on or after July 1, 1984. Capital felonies resulting in a life sentence (instead of the death penalty) remained eligible for parole after serving a mandatory 25-year term. Legislative action taken May 24, 1994, and October 1, 1995, effectively eliminated parole for all capital offenses as well…. 

For more discussion on Life Sentences, read the Marshall Project’s July 2015 piece entitled “Life Without Parole.”

The State of Nevada has scheduled the execution of Scott Dozier for July 11, 2018.  The execution method will be lethal injection.  It is the state’s first execution in 12 years.

On Tuesday, the Nevada Department of Corrections announced that the Dozier Execution will involve the use of the following three drugs:

There are many reasons to be concerned about this particular execution cocktail.  Among them:

  1.  Cisatracuriam was enough of a concern that Nevada’s Eighth Judicial District Court blocked Mr. Dozier’s execution last fall because of this drug.  (Read the Nevada Supreme Court’s overturning of that decision in its May 2018 Order, which allows the execution to proceed.)
  2.  Midazolam has been approved for use in executions by the Supreme Court of the United States (see Glossip v. Gross).  However, that does not mean it is not worrisome:  it took two hours for Joseph Wood to die during his execution by the State of Arizona.  (Read the eyewitness account by reporter Michael Kiefer here.) Arizona refuses to use midazolam in any future executions.
  3. Fentanyl has never been used in an execution.

For more, read “Nevada execution plan sedative blamed for troubles elsewhere,” written by Ken Ritter for the Associated Press and published in the Miami Herald on July 5, 2018.

Our past discussions regarding lethal injection drugs include:

Charles Rhines sits on the South Dakota Death Row waiting to hear if his Petition for Writ will be granted by the U.S. Supreme Court this week (conference of June 14, 2018).

Mr. Rhines seeks review of his capital trial proceedings, arguing that there was an improper refusal  to consider evidence demonstrating that his sexual orientation was a factor in the imposition of the death penalty by the jury.

His petition includes an affidavit from a juror stating the jury “…knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.

Read the briefing here.  

For more analysis, see: Jimmy Hoover, If Jury Racism Isn’t OK, Neither Is Homophobia, Justices Told, Justice 360, May 30, 2018.

This week, the Supreme Court of the United States issued its ruling on the request from Texas Death Row Inmate Carlos Trevino, who asked SCOTUS to review what happened in his criminal trial’s sentencing (penalty) phase and the introduction of mitigating evidence against the death penalty.

SCOTUS declined the request, and will not hear the case.  Justice Sonia Sotomayor dissented, arguing that the High Court should hear Trevino’s arguments. She is joined by Justice Ruth Bader Ginsburg.

Read Justice Sotomayor’s 13-page dissent here

Constitutional Argument:  Ineffective Assistance of Counsel

His argument was based within the constitutional framework of his right to effective assistance of counsel.  By failing to investigate and present evidence at trial of Mr. Trevino’s intellectual disabilities arising out of fetal alcohol syndrome or fetal alcohol spectrum disorder (FASD), he argued that his constitutional rights had been violated.

The only witness presented at the penalty phase of the trial was Carlo’s aunt, who testified Carlos dropped out of high school and that his mother was an alcoholic.

Fetal Alcohol Spectrum Disorder (FASD)

Trevino’s mother drank extensively during her pregnancy.  As a result, Carlos Trevino was born with fetal alcohol spectrum disorder and its accompanying permanent brain damage.

There is no controversy that Carlos Trevino suffers from FASD at this point.

Returned For Mitigating Evidence

The case had been before SCOTUS once before.  In 2013, SCOTUS reversed the Fifth Circuit’s decision not to hear Mr. Trevino’s ineffectiveness of counsel argument.  The case was returned to the appeals court for further consideration. See, Trevino v. Thaler, 133 S. Ct. 1911, 569 U.S. 413, 185 L. Ed. 2d 1044 (2013).

Additional mitigating evidence was provided to the lower federal court.

This included specifics regarding how much his mother drank during the pregnancy (19-24 cans of beer on a daily basis), and that Carlos Trevino was incontinent and wearing diapers until he was 8 years old.  A clinical psychologist testified that Mr. Trevino’s history of FASD “would have impacted any of [his] decisions to participate in or refrain from any activities that resulted in his capital murder charges.”  Dissent, page 5.

Still, the Fifth Circuit failed to find merit in the mitigation evidence.  This week, SCOTUS declined Mr. Trevino’s petition to review that decision.

Justice Sotomayor disagrees with this lower court decision as well as the SCOTUS declining to review Mr. Trevino’s petition.

From her dissent, Justice Sotomayor points out that Trevino’s fetal alcohol spectrum disorder is key to understanding his violent behavior, and this was never presented to the jury during the sentencing phase.

She states (Dissent, page 13)(emphasis added):

The Fifth Circuit majority’s error is glaring, because considering all of the evidence, including that relating to Trevino’s FASD, it is obvious that “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U. S., at 537.

The Fifth Circuit majority plainly misapplied our precedents. Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered. That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state. I therefore respectfully dissent from the denial of certiorari.”

___________________

Once again, these tragic results in appellate review demonstrate the incomprehensible importance of experienced and aggressive defense counsel in the initial criminal trial and its penalty phase.

Right now,  17-year-old Dimitrios Pagoutzis sits in the Galveston County Jail after confessing to being the active shooter responsible for last week’s high school shooting in Santa Fe, Texas.

In Florida, 19-year-old Nikolas Cruz sets in jail in Broward County, Florida, facing 17 counts of murder for the high school shooting on Valentine’s Day at Marjory Stoneman Douglas High School in Parkland, Florida.  See, "Terence Lenamon’s Son At Marjory Stoneman Douglas High School Shooting."

In the Cruz case, prosecutors are seeking the death penalty.  In the Pagoutzis case, they don’t have that option.  That’s because the 17-year-old is not a legal adult, and juveniles are treated differently under the law.

1.  Roper v. Simmons – SCOTUS 2005

Fifteen years ago, the Supreme Court of the United States ruled that it is a violation of the Eighth Amendment of the U.S. Constitution to sentence anyone under 18 years of age to death.  It is cruel and unusual punishment to execute a minor.  Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

From Roper (emphasis added):

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

* * *

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed

 

2.  Miller v. Alabama – SCOTUS 2012

Six years ago, the U.S. Supreme Court ruled that defendants under the age of 18 years cannot be sentenced to life in prison without the possiblity for parole, either.  Miller v. Alabama, 132 S. Ct. 2455, 567 U.S. 460, 183 L. Ed. 2d 407 (2012).

From Miller (emphasis added)

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment. 

Maximum Sentences for HIgh School Active Shooters

The rulings of the Supreme Court of the United States are those of the highest criminal court in the country.  They cannot be disregarded or overturned by any state court (or any lower federal court for that matter).

These two opinions are the law of the land.  Which means that while the Parkland, Florida shooter defendant faces the death penalty, the Santa Fe, Texas shooter defendant  cannot be sentenced to life without parole, much less capital punishment.

That’s the law — and all these outcries for the death penalty in the Texas case fly in the face of these constitutional precedents. 

For more information, see the Death Penalty Information Center’s Roper v. Simmons Resource Page

Two more petitions for a writ of certiorari were denied on Monday by the Supreme Court of the United States in capital cases coming out of Florida. 

They are dealing with review of current Florida Death Row inmates’ sentences where they were sentenced to die under a statutory scheme deemed unconstitutional by the High Court. 

Florida Death Row Sentences Under Unconstitutional System Denied SCOTUS Review

Without more, let us all consider the words of Justice Sotomayor in her dissent published in the cases of Guardado v. Jones and Cozzie v. Florida: 

JUSTICE SOTOMAYOR, dissenting from the denial of certiorari.

Twice now this Court has declined to vacate and remand to the Florida Supreme Court in cases where that court failed to address a substantial Eighth Amendment challenge to capital defendants’ sentences, and twice I have dissented from that inaction. See Truehill v. Florida, 583 U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___, ___ (2018). Four petitioners were involved in those cases.

Today we add two more to the list, for a total of at least six capital defendants who now face execution by the State without having received full consideration of their claims.

It should not be necessary for me to explain again why petitioners’ challenges are substantial, why the Florida Supreme Court should have addressed those challenges, or why this Court has an obligation to intervene. Nevertheless, recent developments at the Florida Supreme Court compel me to dissent in full once again.

As a reminder, like the petitioners in Truehill and Middleton, Jesse Guardado and Steven Cozzie challenge their death sentences pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985). I summarized those challenges in Middleton as follows:

[Petitioners] were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional. See Hurst v. Florida, 577 U. S. ___ (2016). Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst. By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to petitioners’ death sentences. 583 U. S., at ___-___ (slip op., at 1-2) (dissenting from denial of certiorari).
Reliance on those pre-Hurst recommendations, rendered after the juries repeatedly were instructed that their role was merely advisory, implicates Caldwell, where this Court recognized that "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role," in contravention of the Eighth Amendment. 472 U. S., at 333.

Following the dissent from the denial of certiorari in Truehill, the Florida Supreme Court has on at least two occasions taken the position that it has, in fact, considered and rejected petitioners’ Caldwell-based challenges.1 In Franklin v. State, ___ So. 3d ___, 2018 WL 897427 (Feb. 15, 2018) (per curiam), the Florida Supreme Court stated that, "prior to Hurst, [it] repeatedly rejected Caldwell challenges to the standard jury instructions." Id., at *3. The decisions it cited in support of that pre-Hurst precedent rely on one fact: "Informing the jury that its recommended sentence is `advisory’ is a correct statement of Florida law and does not violate Caldwell." Rigterink v. State, 66 So.3d 866, 897 (Fla. 2011) (per curiam); Globe v. State, 877 So.2d 663, 673-674 (Fla. 2004) (per curiam) (stating that it has rejected Caldwell challenges to the standard jury instructions, citing cases that similarly rely on the fact that the instructions accurately reflect the advisory nature of the jurors’ role). But of course, "the rationale underlying [this] previous rejection of the Caldwell challenge [has] now [been] undermined by this Court in Hurst," Truehill, 583 U. S., at ___ (slip op., at 2), and the Florida Supreme Court must therefore "grapple with the Eighth Amendment implications of [its subsequent post-Hurst] holding" that "then-advisory jury findings are now binding and sufficient to satisfy Hurst," Middleton, 583 U. S., at ___ (slip op., at 2). Its pre-Hurst precedent thus does not absolve the Florida Supreme Court from addressing petitioners’ new post-Hurst Caldwell-based challenges.

The Florida Supreme Court in Franklin did not stop there, however. It went on to state that it had "also rejected Caldwell-related Hurst claims" more recently, citing Truehill v. State, 211 So.3d 930 (Fla. 2017) (per curiam), and Oliver v. State, 214 So.3d 606 (Fla. 2017) (per curiam), noting that "the defendants in Oliver and Truehill petitioned the United States Supreme Court for a writ of certiorari to review their Caldwell claims, which the Court denied." Franklin, 2018 WL 897427, *3. This is a surprising statement, because Quentin Truehill and Terence Oliver were the two petitioners whose claims were at issue in my dissent in Truehill. Franklin did not discuss that dissent, joined by two other Justices, which specifically noted that "the Florida Supreme Court has failed to address" the important Caldwell-based challenge. Truehill, 583 U. S., at ___ (slip op., at 1). Earlier this month, in rejecting a motion to vacate a sentence brought by petitioner Jesse Guardado, the Florida Supreme Court again held that it had "considered and rejected" post-Hurst Caldwell-based challenges, citing Franklin, 2018 WL 897427, and Truehill, 211 So.3d 930. Guardado v. State, ___ So. 3d ___, 2018 WL 1193196, *2 (Mar. 8, 2018).2

It is hard to understand how the Florida Supreme Court "considered and rejected" these Caldwell-based challenges based on its decisions in Truehill and Oliver. Those cases did not mention or discuss Caldwell. Nor did they mention or discuss the fundamental Eighth Amendment principle it announced: "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." Caldwell, 472 U. S., at 328-329. In neither Truehill nor Oliver did the Florida Supreme Court discuss the grave Eighth Amendment concerns implicated by its finding that the Hurst violations in those cases are harmless, a conclusion that transforms those advisory jury recommendations into binding findings of fact. Although the Florida Supreme Court noted in Truehill that the defendant in that case "contends that he is entitled to relief pursuant to Hurst v. Florida because the jury in his case was repeatedly instructed regarding the non-binding nature of its verdict," 211 So. 3d, at 955, that was the first and last reference to that argument. There was absolutely no reference to the argument in Oliver. 214 So.3d 606.3

Therefore, the Florida Supreme Court has (again)4 failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges. This Court can and should intervene in the face of this troubling situation.

I dissent.

Foot Notes

1. The cases in which the Florida Supreme Court has taken this position, i.e., that it has considered and rejected the Caldwell-based claims discussed herein, are not the ones currently under review before our Court in these petitions.


2. As petitioner Guardado explained in his supplemental brief, in addition to the postconviction motion that forms the basis of the petition currently before our Court, he also filed a motion to vacate his sentence. See Supp. Brief for Petitioner 1. It was with respect to that motion that the Florida Supreme Court issued the opinion stating that it had "considered and rejected" the Caldwell-based challenge. No mention of the Caldwell-based claim was made in the Florida Supreme Court opinion directly under review in this petition. 226 So.3d 213 (2017). In fact, petitioner Guardado filed a motion with the Florida Supreme Court for rehearing and clarification of the denial of his postconviction motion, noting, inter alia, that the opinion "unreasonably omitted any consideration or discussion of [his] arguments regarding the interplay between Caldwell and Hurst." App. to Pet. for Cert. in No. 17-7171, p. 68a. The Florida Supreme Court denied the motion in an unreasoned one-line order. See id., at 7a. Petitioner Steven Cozzie also moved for rehearing below, similarly arguing in part that the Florida Supreme Court "overlooked the effect of instructing [his] jury many times that its recommendation was advisory only," citing Caldwell. App. to Pet. for Cert. in No. 17-7545, p. 66a. The Florida Supreme Court also denied the motion in an unreasoned one-line order. See id., at 43a.


3. Tellingly, in neither Franklin nor Guardado did the Florida Supreme Court supply a pincite for its "consider[ation] and reject[ion]" in Truehill and Oliver of these Caldwell-based claims.


4. "Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer." Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) ("Everything has been said already; but as no one listens, we must always begin again").