Should current law apply when an appeals court reviews the evidence of mitigating factors and aggravating conditions in a death penalty case?  What about if the case was tried years – even decades – before the appellate review takes place?  Does the court look at current law, or go back to find the law in place at the time of the sentencing phase of the capital trial?

If you think you know the answers to these questions right now, you’re wrong.

No one knows the answers to these questions today.  However, we all will know the answers sometime soon, when SCOTUS gives us its decision in McKinney v. Arizona.

On June 26, 2019, the time to file Respondent’s Brief on the Merits was extended to October 3, 2019. So, we’re looking several months into the future before any opinion comes down.

Background of McKinney v. Arizona

Almost thirty years ago (in 1991), James McKinney and his half-brother were burglars living in Arizona, a death penalty state.  In two of their burglaries, a victim was shot in the back of the head.  When they were caught and tried, each brother pointed the finger at the other as the shooter in these killings.

James McKinney was found guilty of two counts of first-degree murder. His brother was convicted of one count of first-degree murder and one count of second-degree murder.

Under Arizona law, it was the trial judge who sentenced James McKinney to death.  This happened in 1993, and McKinney’s appeal to the Arizona Supreme Court was unsuccessful in a ruling by the state’s high court.

There, the Arizona Supreme Court used its “causal nexus” test in deciding whether or not evidence of James McKinney’s abusive childhood and resulting trauma should be considered in sentencing.  The finding was there was no “causal nexus” between the shootings and his trauma.

In 2005, the State of Arizona stopped using this “causal nexus” test in capital cases.

Federal Appellate Review of McKinney

Mr. McKinney’s legal team did not stop with the 1993 ruling.  They continued in the federal system.  Eventually, his arguments were heard by the Ninth Circuit, which held that the Arizona Supreme Court decision that the mitigating evidence would not be considered was in violation of SCOTUS’s decision in Eddings v. Oklahoma.

The federal appeals court ordered the lower federal court to grant habeas for James McKinney unless the State of Arizona either allowed him another sentencing hearing or summarily reduced his sentence to something other than death.

Arizona challenged this ruling.  The Arizona Supreme Court affirmed the death sentence, holding that SCOTUS’ requirement that juries (not judges) must make the fact findings necessary to support the death penalty did not apply in James McKinney’s case because the SCOTUS rulings came after his conviction was final (in 1996).

Which brings us to where we are today:  James McKinney has filed his petition for a writ of certiorari with the Supreme Court of the United States. (Read the full petition here.)

McKinney and Hurst v. Florida

He argues that his case impacts not only his case as well as other cases in Arizona, but also cases in other parts of the country, including Florida, because of a split in the circuits and state courts.

Specifically, his questions presented are:

  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.

Key here:  McKinney argues that if his case were being heard today in Florida, then Hurst would apply and he would get a sentencing hearing in front of a jury. 

From the petition, page 5: “… Ring and Hurst would apply to McKinney’s case, and he would be entitled to resentencing by a jury….”