Today the U.S. Supreme Court reversed a decision of the Ninth Circuit in a capital case, Thornell v. Jones. All but one of the Justices agreed that the panel decision was wrong. The Ninth Circuit itself refused to rehear this rogue decision over the dissents of ten of its judges. This is such a common occurrence it is hardly even news. The most newsworthy aspect of the case is that a solid majority of the Supreme Court is finally showing skepticism about the value of “background” mitigating evidence that has nothing to do with the crime. This is a most welcome development, even if over 40 years late.

Claims of ineffective assistance of counsel are the weapon of choice for capital defense lawyers who want to retry their state-court cases in federal court. The most common line of attack is to find something about the defendant’s background that the trial lawyer did not present, proclaim it to be critical evidence that would have turned the whole case around, and denounce the trial lawyer as incompetent because he did not present it. The evidence need not have any substantial weight if the murderer wins the judge selection lottery and draws judges who approach every capital case as an exercise in searching for an excuse to overturn the sentence.

In the 1978 case of Lockett v. Ohio, the Supreme Court held that the Eighth Amendment requires that the defendant be allowed to introduce in mitigation any aspect of his character, record, or background that he wants. For the long-form explanation of why this was a disaster, see my 2019 article Tinkering with the Machinery of Death: Lessons from a Failure of Judicial Activism. For many years, the Supreme Court regularly struck down any effort by state courts to put up any guiderails. The Court wrung its hands over evidence that the defendant had a bad childhood, without any showing that this had anything whatever to do with the crime or his decision to commit it. In the 2004 case of Tennard v. Dretke, the Supreme Court reversed a decision of Fifth Circuit Court of Appeals for not considering evidence with no connection to the crime.

The case of Danny Lee Jones is fairly typical of a thoroughly deserved death sentence that was upheld at every step of the lengthy review process until he got lucky at the federal court of appeals. Here is the description of the crime from the Supreme Court’s opinion:

Thirty-two years ago, Danny Lee Jones murdered Robert Weaver, his 7-year-old daughter Tisha Weaver, and his grandmother Katherine Gumina. Jones knew that Robert owned a $2,000 gun collection, and after spending a day drinking and talking with Robert, Jones decided he wanted to steal the guns. He grabbed a baseball bat, beat Robert into unconsciousness, and headed indoors to find the collection.

Once inside, Jones encountered Gumina, who was watching television, and Tisha, who was coloring in a workbook before heading to bed. Jones struck Gumina hard enough to crack her skull, leaving her unconscious on the living room floor. Tisha apparently watched Jones attack her great-grandmother and ran to hide under her parents’ bed. Marks on the carpet show that Jones dragged the girl out from under the bed before beating her hard enough “to create a wound several inches wide, extending from her left ear to her left cheek.” State v. Jones, 185 Ariz. 471, 489, 917 P. 2d 200, 218 (1996). Jones then asphyxiated Tisha with a pillow.

Jones next began loading Robert’s guns into Gumina’s car. At that point, Robert regained consciousness. “Blood smears at the scene showed that [Robert] attempted to run from” Jones, but Jones “struck [him] in the head several more times. The last blow . . . was delivered while [Robert] knelt helplessly on the floor of the garage.” … Jones then skipped town with the guns, using them to pay for a trip to Las Vegas.

A short time later, Robert’s wife came home from work and discovered the gruesome scene. She called 911, but the first responders found that Robert and Tisha were already dead. Gumina lived for 17 months before succumbing to her injuries. Before Gumina died, Jones was charged with two counts of premeditated first-degree murder and one count of attempted premeditated first-degree murder, and a jury found him guilty on all three charges.

The main question at the penalty phase is whether mitigating circumstances outweigh the aggravating ones. What mitigation could possibly outweigh the horrific circumstances of this triple murder? The trial defense lawyers gave it a shot, and a court-appointed psychiatrist provided testimony along the lines of what defense-retained psychiatrists typically give. The judge found four mitigating circumstances:

(1) Jones suffered from long-term substance abuse; (2) that problem may be caused by genetic factors and head trauma; (3) he was under the influence of alcohol and drugs at the time of the murders; and (4) he was abused as a child.

None of these are among the specific mitigating circumstances that the Arizona Legislature has listed, but they came under the Lockett anything-goes requirement. One of the statutory factors that was not established is: “The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” In other words, whatever sympathy the other factors may generate for the defendant, they did not change the fact that he knew what he was doing and could have chosen not to do it.

Jones claimed ineffective assistance by attacking the trial lawyer for not introducing more of the same kinds of evidence of mental issues, head trauma, childhood abuse, and substance abuse. One of the questions that a court must consider on an ineffective assistance claim on omitted mitigating evidence is whether there is a reasonable probability that the outcome would have been different with the additional evidence. Would this “more of the same” evidence actually have changed the outcome?

The best person to answer that question is the original trial judge. He rejected the claim, and the Arizona Supreme Court declined to review it. The federal district judge agreed. But then the case went to the Ninth Circuit.

Incredibly, the panel’s original decision answered the “reasonable probability” question without mentioning the aggravating circumstances at all. There is a reason that the goddess of justice holds a double-pan balance, but the panel just ignored one of the pans. On a petition for rehearing they amended the opinion to mention the aggravators, but failed to give them the weight they clearly warrant.

Eight of the nine Justices of the Supreme Court agree that “the Ninth Circuit all but ignored the strong aggravating circumstances in this case” and that this is reversible error. The opinion of Justice Sotomayor, joined by Justice Kagan, says as much, though it is oddly designated a dissent, rather than a partial concurrence in the result and partial dissent.

The majority of six Justices goes further, however. The opinion of the Court is written by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett.

The Court notes that the Arizona courts had already received mental condition testimony regarding bipolar disorder but gave it little weight because Jones did not “establish a causal connection between his alleged mental illness and his conduct on the night of the murders.” More of the same type of evidence was unlikely to get much weight either. The same is true of childhood abuse evidence. Some of it was likely fabricated, but even the true parts get little weight due to the lack of a connection to the crime. The Court characterizes the evidence as weak, especially when compared to the severe aggravating evidence, including dragging a terrified child from under the bed and then beating and smothering her to death.

Noting the weakness of unconnected evidence is not, strictly speaking, inconsistent with precedents from the Lockett line that require such evidence to be considered. There is a difference in theory between “we will not consider that at all” and “we will consider that, but we don’t give it much weight,” though the difference in practice is not much. But the shift in tone between Tennard and this case is noticeable. None of the Justices in the Tennard majority remain on the Court. Only Justice Thomas was on the Court at the time, and he dissented.

On the surface, we have yet another error-correction decision and chastisement of the Notorious Ninth. But perhaps there is tension building beneath the surface that will eventually build up to an earthquake. The whole Lockett line has no basis whatever in the real Constitution. Perhaps a significant change is on the way.

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