June 4, 2010
Interesting Fourth Circuit opinion affirming Virginia death sentences for female double-murderer
The Fourth Circuit's panel decision today in Lewis v. Wheeler, No. 09-4 (4th Cir. June 4, 2010) (available here), first caught my eye because the case involves a habeas appeal of two death sentences imposed in Virginia on a woman involved in a murder-for-hire scheme that ended the lives of her husband and stepson. Then, upon a quick read, I discovered that the case has involves some interesting legal issues as well as notable facts. This final substantive paragraph from the Lewis panel opinion provides a summary of these issues and how they got resolved:
Having fully considered the record in this case, we agree that Lewis has failed to demonstrate that counsel’s failure to preserve and advise her of a possible Apprendi/Ring challenge to the constitutionality of Va. Code Ann. § 19.2-257 rises to the level of constitutionally deficient representation and has also failed to demonstrate that she was prejudiced as a result of counsel’s alleged deficiencies. Accordingly, we affirm dismissal of her ineffective-assistance-of-counsel claims on the merits, as well as the dismissal of her procedurally defaulted challenges to the statute and her guilty plea.
June 4, 2010 at 04:32 PM | Permalink
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In my opinion, Lewis v. Wheeler illustrates how defense lawyers, and others, do not understand what Apprendi is about. It is not about sentencing. It is about one thing and one thing only-"who convicts a def of a crime, the judge or the jury?"
The first sentence is Lewis is critical. "Teresa Wilson pleaded guilty... to two counts of CAPITAL MURDER FOR HIRE." In other words, she did not plead guilty to the noncapital offense of what Justice Scalia in Sattazahn calls "murder simpliciter." Which is an intentional killing of an ordinary person.
She pleaded guilty to murder FOR HIRE. Therefore, she pleaded guilty to basic murder plus an aggravating factor. The eighth amendment narrowing has therefore taken place in the context of the guilty plea, which means the def has been exposed to death based upon her plea.
Ring and Apprendi are clear that sentencing is a judicial function constitutionally, while the Sixth Amendment jury trial right is implicated only by convictions of crime. As Scalia said in Ring, in answer to Breyer's Eighth amendment view of the role of jury, "unfortunately, today's judgment has nothing to do with jury sentencing."
Appellate counsel does not get this, arguing, "Lewis claimed that she had a constitutional right under Apprendi and Ring to plead guilty and have the aggravating factors determined by a jury instead of a judge." p. 15. Apprendi says no such thing, because the determination of one of the two ags of vileness or future dangerousness does not increase the potential punishment above the level established by the guilty plea to murder FOR HIRE. There is no higher possible punishment than death and Lewis exposed herself to death by pleading to capital murder, as opposed to noncapital murder.
The Fourth Circuit has it right on page 31 when it says, "Neither Apprendi nor Ring holds that a defendant who pleads guilty to CAPITAL MURDER and waives a jury trial under the state's capital sentencing scheme retains a constitutional right to have a jury determine aggravating factors."
P. 32, "If anything, Apprendi would have led a reasonable defense lawyer to believe that capital defendants were NOT entitled to jury determination of the aggravating factors." emphasis in original.
Lewis is instructive on what Apprendi and Ring are about. They are not about who finds sentencing facts. They prohibit a bench trial for a greater offense following a jury trial or guilty plea to a lesser offense.
Posted by: bruce cunningham | Jun 5, 2010 12:24:38 PM
I agree with Bruce, but I think the 4th Circuit botched this Apprendi/Ring analysis. Even if they had gotten the analysis right, she could not have prevailed on this issue in my opinion.
The right to a jury trial attaches to elements of an offense not sentencing factors, sentencing enhancers, or mary janes for that matter. Post-Furman, Lockett, etc., for one to be eligible for death, he/she must commit Aggravated First Degree Murder (“AG FDM”) not Murder Simpliciter. Even if proven, neither aggravating factor exposed her to a greater punishment, i.e., death, than she was exposed to under the guilty plea standing alone. Therefore, those aggravating factors do not constitute elements of AG FDM and, consequently, no sixth amendment jury trial right attached to her sentencing proceeding. Simply stated, this DF exposed herself to death when she pleaded guilty to two counts of AG FDM (Murder for Hire x 2 - 'for Hire' being the death eligible factor). Because the maximum punishment authorized under her guilty plea was death, she was not constitutionally entitled to a jury at sentencing.
For purposes of death eligibility, contrast VAs capital procedures to NCs. In NC, narrowing does not occur, i.e., DFs do not become death eligible, until the jury finds the existence of one aggravating factor during the sentencing proceeding. At the end of the guilt phase in NC, the DF is effectively convicted of Murder Simpliciter; at the end of the guilt phase in VA, the DF is convicted of AG FDM.
Finally, I don't think there are many trial judges who would nullify their own findings and conclusions at a State habeas proceeding. I mean isn't that what the State habeas judge, i.e., the trial judge, would have been forced to do if he reached the prejudiced prong of the Strickland analysis? I just can't envision a judge saying 'hey def atty my decision would have been different had you not been so professionally/objectively unreasonable.' It just wouldn't happen, IMHO.
Posted by: hrattel | Jun 5, 2010 2:51:49 PM
I agree with everything Heather said above. Of course, in the interest of full disclosure, I should say Heather and I have discussed Apprendi/ring/ blakely issues for hundreds of hours and have co-authored two law review articles on Apprendi and Ring.
Posted by: bruce cunningham | Jun 5, 2010 3:58:48 PM
Let me set the record straight on Virginia law. There are three degrees of murder: second, first, and capital. Only a defendant who is convicted of capital murder is potentially eligible for death. Capital murder is the willful, deliberate, premeditated killing of another plus an additional element like murder for hire or murder during commission of arson. These additional elements may be aggravating factors in other states, but they are not in Virginia. They are just elements of the basic offense, which some people call capital murder simpliciter. Virginia has a separate statute on death eligibility. It says there are two aggravating factors, and a person convicted of capital murder can't be eligible for death unless the sentencer finds at least one of these: that (1) the defendant would probably commit future acts of violence or (2) the crime was outrageously or wantonly vile, horrible or inhuman.
Posted by: ArfArf | Jun 5, 2010 6:17:13 PM
thank you for your comments, arfarf. I would like to know more. What is the potential punishment for first degree murder? What is the potential punishment for capital murder?
You stated, "Virginia has a separate statute on death eligibility?" Are you seeing the death elibility determination to be a different process than the death selection process, as Justice Scalia uses those terms in Brown? Actually, do you draw a distinction between death eligibility and death selection? I think Apprendi/Ring apply to determinations of death eligibility but they do not apply to death selection.
You seem to suggest that there are only two aggravators in Virginia, is that correct? And those two are the crime was outrageously vile or the defendant would probably commit future acts of violence. Is that correct?
Do you subscribe to the offense characteristic/offender characteristic dichotomony that Doug talks about often? I do, and it seems to me that only an offense characteristic can serve as an Apprendi/Ring fact which convicts the def of a crime which can expose him to death.
capital jurisprudence is a patchwork morass and I am interested in your responses. Thanks.
Posted by: bruce cunningham | Jun 5, 2010 6:57:57 PM
Bruce: 1. The punishment for first degree murder in Virginia is 20 years to life (LWOP). For capital murder it is LWOP, LWOP plus a fine, or death. 2. Yes, there is a distinction between death eligibility and sentence selection and Apprendi/Ring only apply to eligibility. Virginia law requires first a determination of eligibility. If an aggravtor is found beyond a reasonable doubt then there is consideration of mitigation and then sentence selection. 3. Yes, Virginia has only the two aggravators of future dangerousness and vileness. 4. Apprendi/Ring apply to whatever facts the legislature says must be found for death eligibility. It makes no difference if they are offense characteristics or offender characteristics.
Posted by: ArfArf | Jun 5, 2010 10:03:15 PM
Skimming, but sounds like issue might be whether value judgment that crime was "vile" is necessarily established (in a legal sense) by fact that it was "for hire." Could a jury find it was for hire, but not vile?
If this is legally possible, seems like the agg. is just like the value judgment in Blakely that agg factors are "extraordinary" and justify enhanced sentence. And just like value judgment in 18 USC 3553(b)(1) that factors are atypical/outside of heartland. Those kinds of open-ended value judgments have been treated just like any other factual finding in the Apprendi-line.
Posted by: RW | Jun 5, 2010 10:50:55 PM
If death is a potential punishment for the crime of capital murder, then, by definition, vileness and future dangerousness are not Apprendi facts. In my view, the reason for that is because the finding of either vileness or future dangerousness does not increase the potential punishment above the Blakely max.
Blakely did not add anything to Apprendi. All Blakely did was define the phrase "prescribed statutory maximum" and said that that phrase meant the possible punishment available based on the guilty verdict or plea standing alone.
Since death is a potential punishment for capital murder and vileness or dangerousness do not increase that potential punishment, then the Fourth Circuit was correct that the finding of vileness and dangerousness does not need to be made by a jury beyond a reasonable doubt. (I think Cunningham v California makes clear that the word "penalty" in the Apprendi Rule means potential punishment not actual punishment imposed)
Posted by: bruce cunningham | Jun 5, 2010 11:58:38 PM
Sounds like the arg they rejected in Ring, that because death was an authorized penalty for the statutory offense of capital murder, the aggs did not increase the max penalty. Again, skimming, but sounds like vileness is legally essential to sentence within the meaning of Ring -- otherwise, Ring majority said, Apprendi is just about statutory drafting rather than protection against judicial fact-finding of facts that actually increase potential sentence. Whether its possible for murder to be for hire, but not meet this test seems like the key question, and is resolved by VA law.
Posted by: RW | Jun 6, 2010 12:46:42 AM
RW, thanks for weighing in on the discussion. Two comments
How do you reconcile your opinion with Scalia'a statement in his concurring opinion in Ring that states who leave the ultimate decision of life or death to a judge may continue to do so?
And, I think there is a difference between the requirement for a jury determination of facts leading to a death sentence as a matter of federal constitutional law and as a matter of state statutory law. Under NC statutory law, Lewis wins because our statute provides for jury determination of all ags, a jury determination of whether mits are insufficient to outweigh ags , and a jury determination that the ags are sufficiently substantial to call for the imposition of death.
However, NC would be free to provide that a jury doesn't have to make those final three decisions, as a matter of federal constitutional law. In my view, the only thing the Sixth Amendment requires is that a jury find the one ag, or fact, or element (or as Scalia says tongue not in cheek in Ring the one "mary jane") which convicts the def of a crime which makes death a potential punishment.
Read closely the Sixth Amendment. It guarantees a jury trial to a def only for a "criminal prosecution." Once a def in Va is convicted of capital murder the criminal prosecution phase is over and we go into the sentencing phase. It is undeniable that Apprendi/Ring/Blakely/Cunningham are Sixth Amendment based, not, as Breyer would like it to be, Eighth Amendment based. Recall Ginsburg's statement that "def's argument is tightly delineated." to be based on the Sixth Amendment. Remember Thomas' statement in Apprendi that the issue presented is "simply put, what is a crime?"
In my view, once a defendant has been convicted, by plea or jury verdict, of a crime which exposes a defendant to death, the role required by the Sixth Amendment for the jury is done. (this is not my personal view, it is what I glean from reading each opinion by each justice in the Sixth Amendment line many, many times. Personally, I favor Breyer's approach in Ring)
Posted by: bruce cunningham | Jun 6, 2010 7:39:50 AM
A guilty verdict or plea of guilty is not enough to authorize a death sentence. There are two relevant Virginia statutes.
"§ 19.2-264.2 Conditions for imposition of death sentence. In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of death be imposed." In this statute (1) is death eligibility and (2) is sentence selection.
"§ 19.2-264.4. Sentence proceeding. A. Upon a finding that the defendant is guilty of an offense which may be punishable by death, a proceeding shall be held which shall be limited to a determination as to whether the defendant shall be sentenced to death or life imprisonment. Upon request of the defendant, a jury shall be instructed that for all Class 1 felony offenses committed after January 1, 1995, a defendant shall not be eligible for parole if sentenced to imprisonment for life. In case of trial by jury, where a sentence of death is not recommended, the defendant shall be sentenced to imprisonment for life.... C. The penalty of death shall not be imposed unless the Commonwealth shall prove beyond a reasonable doubt that there is a probability based upon evidence of the prior history of the defendant or of the circumstances surrounding the commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to society, or that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim.... E. In the event the jury cannot agree as to the penalty, the court shall dismiss the jury, and impose a sentence of imprisonment for life."
Posted by: ArfArf | Jun 6, 2010 8:24:10 AM
Arf Arf (what's your name?)
A guilty plea to capital murder may not "authorize" a death sentence, but a guilty plea to murder accompanied by an admission that the murder was committed for hire is sufficient to convict a defendant of a crime for which death is a potential punishment. All that Apprendi/Ring require is that a jury determine all the facts necessary to convict a defendant of a crime for which death is a possible punishment. Whether death, as opposed to life, is actually imposed is a sentencing matter which Ring makes clear can be determined by a judge. (I think there are still five states who provide for a judge to decide life or death following a jury verdict of guilt to capital murder)
Lewis is in the fourth circuit on the denial of a petition for writ of habeas corpus. Which means that there must be clearly established federal constitutional law affording the def the relief she seeks. She seeks to have BOTH vileness and dangerousness to be determined by the jury. As I said, it is clearly established federal constitutional law that "for hire" must be found by a jury. I see nothing in any of the Sixth Amendment cases which require a jury to have a role after the jury finds the def guilty of murder and that the murder was for hire. Specifically, can you point to a statement in Apprendi or Ring which supports Lewis' position?
thanks for the discussion. This is murky stuff.
Posted by: bruce cunningham | Jun 6, 2010 9:38:11 AM
With all do respect ArfArf, I think we're gonna have to agree to disagree. In VA, I think death selection occurs at sentencing and death eligibility occurs at the guilt phase.
Am I understanding that you don't think this woman pleaded guilty to two counts of capital murder, which is what I call AG FDM? Do we agree that P&D and 'for hire' are two different things?
A number of experienced VA capital defenders have agreed with me on: 1) that an indictment in VA charges Murder simpliciter + an Aggravating Fact aka capital murder(such as for hire, police officer, etc.); and 2) the Apprendi/Ring Fact (Aggravating Fact) is found during the first proceeding making the DF death eligible before they ever get to the sentencing phase.
In my opinion, the following sentence clearly establishes that a person found guilty of capital murder 'may be' punished by death; that is they are death eligible at the end of the guilt/innocence phase or under a plea of guilty to capital murder; in other words, a VA capital sentencing proceeding shall not occur unless the DF is exposed to death under the jury verdict or plea.
"Upon a finding that the defendant is guilty of an offense which may be punishable by death, a proceeding shall be held which shall be limited to a determination as to whether the defendant shall be sentenced to death or life imprisonment."
Posted by: hrattel | Jun 6, 2010 11:02:07 AM
Here is another way to look at it.
In Blakely, Justice Scalia wrote for the majority that a def is entitled to have a jury decide if he is guilty of "the crime the state actually seeks to punish."
In Virginia First Degree Murder is the intentional killing of an ordinary citizen. In Virginia there is a greater, substantive crime known as Capital Murder, when a person has committed first degree murder and they were hired to do it.
Are you saying that there is an even greater offense of First Degree Murder for Hire by a Person who is Likely to Commit Another Offense in the Future? In the United States people are punished for what they do, not who they are. I agree with Doug's statement in "Conceptualizing Blakely" that the offense characteristic/offender characteristic distinction should inform the jury trial right.
Your view that future dangerousness can be an element of a substantive offense is contrary to a number of constitutional principles, while its use as a sentencing factor is probably okay. In essence, the bill of attainder clause is all about prohibiting the state from punishing people based on who they are.
Posted by: bruce cunningham | Jun 6, 2010 11:34:14 AM
The maximum sentence for guilt of capital murder in Virginia is life, just like the maximum sentence for guilt of felony murder in Arizona is life. The maximum sentence in both states can be elevated to death but only if there is a finding of additional facts. Those facts are what makes the defendant death eligible.
Apprendi/Ring apply only to the finding of death eligibility and it must be made by a jury. After that comes sentence selection and Apprendi/Ring allow sentence selection to be decided by the judge. I can't be more clear than that.
Posted by: ArfArf | Jun 6, 2010 11:44:25 AM
I understand what you are saying because we have had the same conversation many times in north carolina, but in my opinion your statement above just contradicts your earlier statement that death is one of the possible punishments for capital murder.
Posted by: bruce cunningham | Jun 6, 2010 12:05:32 PM
"In essence, the bill of attainder clause is all about prohibiting the state from punishing people based on who they are."
But the Bill of Attainder Clause doesn't concern itself with generally applicable punishments.
Posted by: federalist | Jun 6, 2010 12:25:03 PM
correct, federalist. I'm just saying that there are many, many problems with having an offender characteristic as an element of a crime. Equal protection problems, vagueness problems, arbitrariness problems, due process problems, etc. I just mentioned bills of attainder offhand to illustrate that in the United States we don't enact criminal legislation that treats someone differently because of their lineage, or other factors that are unrelated to conduct. In my view, crimes have to do with conduct, while punishment can take into account characteristics of the person, like recidivism.
I think Thomas, the swing vote from Almendarez Torres that made the Apprendi majority, makes it clear that Apprendi is all about crimes, not punishments.
This has been an interesting discussion. It is hard to get one's head around it. The only way I've been able to reconcile all of this is to say that a def has a right to have a jury decide the offense characteristic fact that convicts him of a crime greater than plain first degree murder, which then exposes him to death. (I think Apprendi is triggered by exposure to increased punishment, not imposition of increased punishment). Virginia, by proving the murder was for hire has satisfied the eighth amendment narrowing requiring by convicting the def of some crime greater than plain first degree murder. At that point, both life and death are possible punishments. Since the state has proven a factor that the legislature says can warrant death, the for hire component, I think the burden of going forward shifts to the def to present some evidence of a mitigating factor. If the def does that, then I think the burden of persuasion shifts back to the state to show that death is the appropriate punishment of the two options.
Posted by: bruce cunningham | Jun 6, 2010 1:32:51 PM
Arfarf, can you do me a favor?
If Virginia charges people with capital murder by way of a bill of indictment returned by a grand jury, and you have access to such a charging document, can you fax me a copy at 910-695 0983?. Actually, if anyone in any state has such a charging document, I would love to see it.
I'm working on a cert petition to SCOTUS, arguing that North Carolina must include in an indictment an allegation of a fact which increases the crime charged from first degree murder to capital first degree murder.
I'm not trying to take on Hurtado's holding that the indictment clause has not been incorporated against the states, I'm just trying to say that, however a state charges someone with a crime, they can't try a def for a crime that he hasn't been charged with. Cole v Arkansas. NC just leaves it to the whim of the DA whether or not to try someone for death.
Posted by: bruce cunningham | Jun 6, 2010 3:20:08 PM
Virginia indictments only allege the actual statutory elements of capital murder. Here's an example of a typical charge: "The grand jury charges that on ___ date, X did willfully, deliberately, and with premeditation kill and murder Y by another for hire, in violation of § 18.2-31." Indictments don't allege aggravating factors. If a defendant pleads guilty to the charge in the indictment, he is not pleading guilty to any statutory aggravating factor.
Posted by: ArfArf | Jun 6, 2010 4:25:12 PM
thanks. Do you have an example of an indictment I can attach to the cert petition? Your indictment has the words "for hire" in it,, which is more than what North Carolina does. In NC, "for hire" is a statutory aggravating factor, which elevates the crime of first degree murder to capital murder. the problem is that the State doesn't have to tell us ahead of time what fact they contend makes the def guilty of capital murder instead of plain first degree murder. Crazy, huh? It hearkens back to the preRing days when death was a more severe punishment for first degree murder rather death now being one of two punishments for a more severe crime than first degree murder.
Now, in my view, there are no aggravated sentences after Apprendi, there are only aggravated crimes. This is a perfect example of why Scalia said in Brown v Sanders that we should stop using the word "aggravator" because it is used in some places as a death eligibility factor and in some places as a death selection, or sentencing , factor.
I believe Va's indictment is proper and I think is now constitutionally required after Ring. Your statement "If a defendant pleads guilty to the charge in the indictment, he is not pleading guilty to any statutory aggravating factor," would not be the case in NC. I think Lousiana does it right, at least as the procedure is set forth in Lowenfield v Phelps. La. has two lists of ags. One is composed of offense characteristics which elevate the crime, and the other is a list of ags which can be used to select the punishment and they can be either offense or offender characteristics. Actually, in La. their first degree murder would be your capital murder and their second degree murder would be your first degree murder.
As I have said, this is very, very elusive stuff, not made any easier by the fact that I think Scalia is right that the Furman/Lockett tension is virtually irreconcilible.
Posted by: bruce cunningham | Jun 6, 2010 5:59:38 PM
"How do you reconcile your opinion with Scalia'a statement in his concurring opinion in Ring that states who leave the ultimate decision of life or death to a judge may continue to do so?"
At tension, to be sure. But I think that tension is between Scalia's view in Ring, and the Court's treatment of the open-ended "findings" that expose the defendant to an above-range sentence in Blakely and Booker. This replicates a tension in the Capital Jurisprudence, to which Scalia is fond of pointing, with some persuasive force, between the need for 8th amendment narrowing and the prohibition on mandatory death sentences. (Or, as you aptly describe it, the Furman/Lockett tension).
Were I lower court judge charged with applying Ring and Blakely/Booker both, I would do so this way, and I think this is the reasoning that will ultimately prevail:
Juries must make any "finding" that is essential to a death sentence, even if it is composed of both historical facts, and judgments about whether those facts meet a legal definition. This echoes Gaudin, which commits to the jury mixed questions of law and fact. The ultimate decision to put the defendant to death or rather to exercise mercy is not a "finding" --it is simply a totally unguided decision.
There are problems with this resolution, due both to tension between Ring and Blakely, and between the two competing strands of capital eighth amendment jurisprudence. But that's my best guess.
I would be very surprised, however, to see the issue resolved by a holding that the aggs are not Apprendi facts because death is an authorized penalty for capital murder, as statutorily defined. I think that is exactly the point of Ring.
Posted by: RW | Jun 6, 2010 8:09:50 PM
RW, you, and I, basically agree with Justice Breyer in Ring that death or not should be in the hands of the jury completely, if the def chooses to put it there, and base the rationale for that position on something other than the sixth amendment line of cass. Like the Eighth Amendment.
However, what started this thread was whether Lewis was correcty decided by the Fourth Circuit. As mentioned earlier,the case comes out of federal habeas, so there has to be clearly established federal constitutional law that the state is violating. I don't believe our personal opinion is established, much less clearly established.
Posted by: bruce cunningham | Jun 6, 2010 9:21:06 PM
So to clarify, did the plea establish that it was "vile" or that it was "for hire"?
Posted by: RW | Jun 6, 2010 9:58:46 PM
that it was for hire
Posted by: bruce cunningham | Jun 6, 2010 10:48:01 PM
Bruce, a New Hampshire capital murder indictment (from the only modern New Hampshire case to produce a death sentence) is here:
Posted by: Paul | Jun 7, 2010 9:27:19 AM
thanks paul, that is the way I think they should look. Are you the Paul from New Hampshire I talked to about the Diaz issue a couple years ago?
Posted by: bruce cunningham | Jun 7, 2010 2:13:01 PM
Is there VA law that says either 1) "for hire" necessarily satisfies "vileness", or 2) fact-finders may conclude that "for hire" satisfies "vileness"?
Posted by: RW | Jun 7, 2010 3:27:18 PM
RW: No Virginia law says "for hire" necessarily satisfies "vileness." Can fact-finders conclude that "for hire" satisfies "vileness"? Unsure. The statute says vileness means the crime involved torture, depravity of mind or an aggravated battery to the victim. The courts interpret "depravity of mind" to mean “a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation” and "aggravated battery" to mean "a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder." The courts have sidestepped whether the depravity or battery of the killer can be attributed to the hirer.
Posted by: ArfArf | Jun 7, 2010 3:57:12 PM
Ok, little better informed now. I doubt that the plea established vileness, and think that under clearly established law, an admission of murder for hire is not sufficient to deprive the defendant of the right to a jury finding on vileness. Even acknowledging that the ultimate decision to put someone to death need not be made by a jury, the decision that certain facts constitute "vileness" is not the same as the exercise of discretion to asess life or death, or even than the decision that certain factors merit an unpward departure, which were subject to jury facct-finding in blakely and booker. The law isn't especially coherent in a deep analytical sense, but the precedents seem to make the outcome clear.
But this case doesn't seem very likely to get cert. The question here seems to be whether the deft's plea encompassed an intentional waiver of jury trial, either because state law permissibly put deft's to the choice of pleading guilty to all elements or having a jury decide all elements, or because the def't intentionally chose the judge to the jury as the fact-finder on this question. Too much noise there, I suspect, for cert. to be very likely.
Posted by: RW | Jun 7, 2010 5:07:54 PM