Supreme Court Weighs Role of Jury in Death Penalty Case

Several justices indicated that it may have been sufficient for the Arizona Supreme Court to consider whether the additional evidence would warrant a different sentence for the inmate, James McKinney, who was sentenced to death in 1993 for killing two people in their homes during separate burglaries.

In a decision last year, the state Supreme Court reweighed the evidence, now including information about the abuse McKinney had endured, and concluded that a death sentence was still warranted.

Requiring a new sentencing hearing before a jury could cause needless distress to the victims’ families, Justice Brett M. Kavanaugh said.

“You’re requiring a new jury sentencing 28 years after the murders and after the victims’ families have been through this for three decades,” he told Neal K. Katyal, a lawyer for McKinney.

Katyal responded that capital sentencing should not be done based on a paper record. “We’re not talking about some technical violation here or something,” he said. “We’re talking about the heart of what capital punishment sentencing is all about, the weighing of mitigating and aggravating circumstances.”

Oramel H. Skinner, Arizona’s solicitor general, said the state’s Supreme Court was perfectly capable of imposing a new sentence based on the trial court record from the original sentencing.

In 2015, more than two decades after McKinney received the death sentence, a federal appeals court gave him another chance to challenge it.

The judge who sentenced McKinney to death had acknowledged that he had suffered childhood abuse that was “beyond the comprehension and understanding of most people.” But the judge said he could not take that abuse into account in determining the right sentence because Arizona law allowed consideration of mitigating evidence only if it had a “causal nexus” to the crime.

That was an error of constitutional dimensions, the federal appeals court said. The court, the United States Court of Appeals for the 9th Circuit, ordered the state to impose a lesser sentence or to resentence McKinney. The state chose resentencing and asked the Arizona Supreme Court to conduct it.

The basic question for the justices, one that could affect 19 inmates in Arizona alone, was how the resentencing should take place.

Katyal said his client was entitled to a sentencing hearing in a state trial court, for two reasons. First, he said, a 2002 Supreme Court decision, Ring v. Arizona, ruled that juries, not judges, must make the factual findings to support death sentences.

The Ring decision was issued after McKinney’s original sentencing, and a 2004 Supreme Court decision ruled that Ring did not apply retroactively.

But Katyal said the 9th Circuit’s ruling effectively reopened the case. That meant, he said, that McKinney was entitled to have a jury make the factual findings on the proper sentence.

Justice Elena Kagan did not seem persuaded by this part of Katyal’s argument. “Is the defendant getting a kind of windfall if Ring applies?” she asked.

“The error here has nothing to do with Ring,” Kagan said. “And Ring only comes into the picture because the court is trying to correct a different error.”

Later, though, addressing Skinner, Kagan said, “It’s a little bit strange to have a new proceeding where a rule that’s been around for 20 years is not being applied.”

In any event, Katyal said, moving to his second argument, resentencing by the state Supreme Court was improper under a different line of Supreme Court precedent. Those decisions, which required weighing all mitigating factors whether or not they were connected with the crime, contemplated resentencing to take place in a trial court.

Justice Stephen G. Breyer appeared unconvinced. “Why does it have to go back to the trial court?” he asked, adding, “In Arizona, the sentencer is the appellate court.”

Justice Samuel A. Alito Jr. seemed inclined to reject both arguments, saying they would amount to a “double windfall.”

“You have an entirely formalistic argument, and maybe it’s right,” Alito said, “but why don’t you just admit it’s entirely formalistic?”

Katyal declined. “I couldn’t disagree more profoundly with that,” he said.

This article originally appeared in The New York Times .