SCOTUS Wrestles with Mercy, Prejudice in Capital Cases

By  Nicholas Datlowe

Oct. 7 — The U.S. Supreme Court took the new term's first look at capital punishment Oct. 7, considering three cases testing what procedures the Eighth Amendment's prohibition on cruel and unusual punishment require (Kansas v. Carr, U.S., Kansas v. Carr, U.S.,  and Kansas v. Gleason, U.S., argued 10/7/15).

In overturning the death sentences below, the Kansas Supreme Court determined that there had been two Eighth Amendment errors.

The first, applicable to all three defendants, was the failure to affirmatively instruct the penalty-phase juries that mitigating factors in the crime did not need to be proven beyond a reasonable doubt.

The second, relevant only to brothers and joint defendants Reginald and Jonathan Carr, was the failure to sever their penalty phase trials.

Sidney Gleason was convicted in the murder of a former criminal cohort and her boyfriend. The Carrs were convicted of a brutal string of crimes that left several people dead.

Justice Samuel A. Alito Jr. described the cases as “some of the most horrendous murders that I have seen in my 10 years here.

Matters of State

Right off the bat, Derek L. Schmidt, Attorney General of Kansas, faced questions regarding whether the decision below interpreted the Eighth Amendment, or was one of state law.

“As I am reading the decision below, the court is saying that the principles of the Eighth Amendment give voice to or support for the use of this burden and Kansas is commanding it, Justice Sonia Sotomayor said.

Schmidt disagreed, saying that it was appropriate for the state court to determine what was correct under state law, but that “what the Kansas court is not supposed to do in that circumstance is pivot to the Eighth Amendment and make a federal decision that is incorrect under this court's practices.

Justice Anthony M. Kennedy agreed, adding that Michigan v. Long, , “made it very clear that a state court cannot hide behind a federal law and be immune.

Alito noted that if the Kansas court had based its decision clearly on state law, “it would have to take responsibility for the decisions in these cases, and that it avoided doing so by basing the decisions on federal law.

Schmidt declined to comment on the Kansas court's motivation, but Justice Antonin Scalia was not so shy.

That there are nine people on Kansas's death row suggests that “Kansans, unlike our Justice Breyer, do not think that the death penalty is unconstitutional and indeed very much favor it, which might suggest that a retention election that goes before such people would not come out favorably for those justices who create Kansas law that would reverse those convictions, he said.

“I am just speculating, of course, he added.

The call-out to Justice Stephen G. Breyer was in reference to his dissent last term in Glossip v. Gross,  2015 BL 206563 (U.S. June 29, 2015) , where he said that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.'

Mercy Me

Neal K. Katyal of Hogan Lovells, Washington, representing Reginald Carr on the burden question, argued that the instructions here—which charged the state with proving aggravating factors beyond a reasonable doubt but were silent as to the burden of proof for mitigating factors—“are injecting confusion and uncertainty into sentencing.

Jury decisions could turn on the way jurors had parsed the instruction, he suggested. Justice Elena Kagan agreed that the instruction was “unfortunate in its juxtaposition of the reasonable doubt standard and the reference to mitigating circumstances.

Other justices weren't convinced. Scalia called it “common sense that a juror would not interpret silence as to a burden of proof as incorporating a previously mentioned one.

Even Kagan seemed unsure of how unclear the instructions actually were.

Noting that there was a general instruction advising the jury that it could consider mercy and that they could consider everything that had been presented to them over the trial, “the question is, even if this is a really unfortunate wording in the reasonable doubt/mitigating circumstances juxtaposition, why doesn't all of this other stuff indicate that no juror was likely to be confused? Kagan asked.

Jeffrey T. Green of Sidley Austin LLP, Washington, representing Gleason and Jonathan Carr on the burden question, argued that it was because the confusing wording had been repeated several times.

Kennedy noted that in any event, mercy, which is a permissible mitigating factor, “is not something that is easily subject to a burden-of-proof analysis one way or another.

As a practical matter, Kansas has changed its jury instructions so that in future cases an affirmative jury instruction regarding mitigating factors will be given, Schmidt said.

Practical Concerns

Turning to the severance question, the justices were clearly concerned that the approach of the Kansas Supreme Court would require separate penalty phase trials.

Such a requirement could strain judicial resources, requiring presentation of largely similar evidence to two separate juries, and could also lead to different outcomes.

Breyer, in particular, seemed concerned about the potential reach of a broad rule in favor of severance, noting that joint trials in the non-capital context were very common.

If evidence relevant to sentencing one defendant but prejudicial to a joint defendant was grounds to sever, “then I imagine it would affect every criminal trial of gangs across the country, and that is something that is concerning me, he said.

Frederick Liu, also of Hogan Lovells, Washington, and representing Reginald Carr on severance, responded that the circumstances of each case were relevant and that not all prejudice would give rise to a need for severance.

Breyer was not convinced. “Why is it you believe that if I were to decide in favor of you in this case, “I wouldn't at the same time be throwing a huge monkey wrench into the ordinary cases of gangs, drugs, et cetera?

Chief Justice John G. Roberts Jr. also noted the advantage of going second in a severed trial. “You have sort of a dry run at the state's evidence if you go second, he said.

Green—now representing only Carr—suggested that the problem could be solved by simultaneous trials or protective orders.

Liu also suggested that the consistency problem could be alleviated by letting one jury know what the other did, as is allowed under federal law.

“That sounds pretty prejudicial to me, Roberts said. “These people acted together, and by the way a jury of your peers found beyond a reasonable doubt that this guy should be sentenced to death, now do whatever you want with this guy, he said.

Lousy Big Brother?

The justices also seemed to struggle with what, exactly, the alleged prejudice was here.

Older brother Reginald had introduced evidence that younger brother Jonathan was a sociopath and therefore the more culpable of the two; Jonathan argued that Reginald had “corrupted him as a child, including through sexual abuse.

Scalia in particular thought it unlikely that the joint penalty phase had prejudiced the Carrs.

After reading off a brief summary of the gruesome facts in their case—including the robbery, rape and murder of five people, four of them execution–style—Scalia asked, “You truly think that this jury, but for the fact that your client [Reginald Carr] was a corruptor, would not have imposed the death penalty?

Liu, however, was ready for the question. “Egregiousness of an offense is just one factor in determining whether a sentence is appropriate at the penalty phase, he said, citing Scalia's own concurrence in Glossip.

Even so, Kagan seemed unconvinced. “I mean, given the kind of evidence that was presented in this case, the idea that somebody was a lousy big brother seems pretty small on the scale of things, she said.

Neither did Scalia relent. The error in not severing, if there was one, “has to have been harmless inasmuch as the person who was influenced by [Reginald] also got the death penalty. How can you say that what made the difference was the fact that your client was a corrupting influence on his younger brother? he asked.

When Liu suggested that perhaps the jury believed that Jonathan had been the primary shooter, Scalia retorted, “You really think that that is the only thing the jury is going to be focused on, is who pulled the trigger? My Lord.

Arguing for the federal government as amicus on the side of Kansas, Rachel P. Kovner of the Solicitor General's office, Washington, argued that joint trials enhance accuracy, fairness and consistency.

She suggested that severance should only be required if it would be impossible for a jury to make an individualized punishment determination in the context of a joint trial.

Kansas Solicitor General Stephen McAllister offered a slightly different standard for when trials should be severed, but both agreed that it should happen “rarely.

Hearsay Wrinkle

Near the beginning of the second hour, Justice Ruth Bader Ginsburg pointed out an additional wrinkle with the Carrs' case.

She noted that the Kansas court had overturned the Carrs' death sentences and ordered a new trial on a separate ground relating to hearsay evidence admitted in the penalty phase.

Kansas had petitioned for review of that decision as well, but the Supreme Court didn't grant on that issue.

“When it goes back to Kansas, they can still say thank you for telling us about severance, but we have this other ground that leads to the same bottom line, Ginsburg suggested.

McAllister said that he was “certainly hopeful that the court would take another look at the hearsay question “depending on its resolution of the two questions that are in front of it today.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at