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June 19, 2017

SCOTUS summarily reverses Sixth Circuit reversal of Ohio death sentence

The US Supreme Court this morning issued this order list that did not include any grants of certiorari, but did include a summary reversal in the Ohio capital habeas case of Jenkins v. Hutton, No. 16-1116 (S. Ct. June 19, 2017) (available here).  Here are some key passages from this brief per curiam opinion: 

According to Hutton, the court gave the jurors insufficient guidance [when deciding on whether to recommend a death sentence] because it failed to tell them that, when weighing aggravating and mitigating factors, they could consider only the two aggravating factors they had found during the guilt phase.  Hutton, however, had not objected to the trial court’s instruction or raised this argument on direct appeal, and the District Court on federal habeas concluded that his due process claim was procedurally defaulted....

Nonetheless, the Sixth Circuit held that the [miscarriage of justice] exception justified reviewing his claim. The court gave two reasons: First, Hutton was not eligible to receive a death sentence because “the jury had not made the necessary finding of the existence of aggravating circumstances.” 839 F.3d, at 498–499.  And second, since the trial court “gave the jury no guidance as to what to consider as aggravating circumstances” when weighing aggravating and mitigating factors, the record did not show that the jury’s death recommendation “was actually based on a review of any valid aggravating circumstances.” Id., at 500....

The Sixth Circuit was wrong to reach the merits of Hutton’s claim.... Hutton has not argued that the trial court improperly instructed the jury about aggravating circumstances at the guilt phase.  Nor did the Sixth Circuit identify any such error. Instead, the instruction that Hutton contends is incorrect, and that the Sixth Circuit analyzed, was given at the penalty phase of trial.  That penalty phase instruction plainly had no effect on the jury’s decision — delivered after the guilt phase and pursuant to an unchallenged instruction — that aggravating circumstances were present when Hutton murdered Mitchell.

The Sixth Circuit’s second reason for reaching the merits rests on a legal error.  Under Sawyer, a court may review a procedurally defaulted claim if, “but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty.”  505 U.S., at 336 (emphasis added).  Here, the alleged error was the trial court’s failure to specify that, when weighing aggravating and mitigating factors, the jury could consider only the aggravating circumstances it found at the guilt phase.   Assuming such an error can provide a basis for excusing default, the Sixth Circuit should have considered the following: Whether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.

June 19, 2017 at 09:51 AM | Permalink


Another day, another 'rat judge getting clowned by SCOTUS. Just how dumb is "Judge" Bernice Donald?

Posted by: federalist | Jun 19, 2017 10:49:07 AM

Doug, the Sixth Circuit's decision, IMHO, is indefensible. What does that say about Judge Donald?

Posted by: federalist | Jun 19, 2017 1:50:29 PM

Judge Merritt joined in here, based in part on death is different reasoning. And that, I think, is the heart of the story. Some judges in lower federal courts, as well as some Justices, seem to believe that any and every problem identified in the imposition of a death sentence demands a reversal.

Posted by: Doug B. | Jun 19, 2017 8:50:14 PM

Doug, that's a professorial way of saying that some judges are lawless. It's a remarkable concession.

Posted by: federalist | Jun 19, 2017 9:51:31 PM

First, federalist, this is not what I said. If I said that some judges in lower federal courts, as well as some Justices, seem to believe that any and every form of government torture demands some redress, would that be saying some judges are lawless, or rather really just saying that some judges believe the law does not permit torture to go without redress. In this setting, I suspect, Judges Donald and Merritt sincerely believe they are ruling consistent to the law of the Constitution and applicable statutes as they see it (though SCOTUS obviously had a different view). Staying in the capital arena, I think Justice Breyer genuinely believes the Constitution now demands prohibition of capital punishment. I do not think that makes him "lawless," that makes him subject to a different view of the law than you hold.

Moreover, even if you want to embrace the provocative term "lawless" here to describe what I am saying about how federal judges approach their job of reviewing state death sentences, such a statement is not really a concession OR remarkable at all, federalist, if you understand academic legal thought throughout the 20th Century. The Legal Realists astutely --- and I think rightly --- observed at the start of the 20th Century that formal law is often less central to the work of judges than various political and moral commitments. Later in the 20th Century, the Critical Legal Studies Movement suggested that all law and judicial decision-making is politics and any effort to champion law as independent from politics is itself a pernicious political move. In other words, law professors for a century have been saying, in one professorial way or another, that "some judges are lawless."

Posted by: Doug B | Jun 20, 2017 11:01:54 AM

First of all, Doug, even if Breyer gets to vote a certain way and call it his view of what the Constitution demands, Judge Donald does not. She is bound by the Supreme Court's interpretation of AEDPA. She clearly did not adhere to it. You attempt to elide this with some idea of "legal realism"--but the bottom line, it seems to me, is that you've conceded that Donald believes that every problem (whatever that means) demands a reversal--with the implication being that she acted on that belief and thus decided the way she did. But that is decidedly NOT how AEDPA works, and AEDPA is the law of the land. In another thread you conceded that appeals court judges not following AEDPA is problematic--your discussion here shows significant tension with that earlier statement.

I think you are trying to wriggle out of the obvious import of your commentary. It is undeniable that Donald's reasoning was weak and that she did not follow AEDPA--either she was willful (i.e., lawless), incompetent (I mean c'mon, she knows what AEDPA requires--not like the Sixth Circuit hasn't been reminded of that a lot) or both. Trying to hide that behind "legal realism" is a losing hand and you know it.

I understand--you can't come out and say "lawless" or "incompetent"--but what other explanation is there for the failure to follow AEDPA and the obvious botching of the Sawyer standard? "Legal realism"??? Seriously?

Posted by: federalist | Jun 20, 2017 12:11:06 PM

federalist, I think you wrongfully believe that I am trying to defend the decision below. I am only trying to explain it in response to your query, and the explanation I am giving is that some judges will strain to find ways to reverse a state death sentence they think wrongful; these judges seems to view AEDPA as a hurdle to be overcome rather than a law to be respected. These judges, I suspect, genuinely think not only "close enough for government work" is not good enough for a death sentence, but also that Congress in AEDPA did not "really" mean to allow faulty state death sentences to be upheld by federal courts.

Label this reality however you want, but I see it as no more "lawless" than a whole lot of other criminal adjudication both for and against the state that seems driven principally by a desire to get to a particular result (e.g., the majority opinion of the NC Supreme Court in Packingham). And I am not sure what you think I am trying to wriggle out of, but I am sure these realities are, in my view, just another example/variation on legal realism and CLS, both of which highlight that judges and other legal actors with an agenda (conscious or unconscious) can often find a way to "use" the law to reach any number of desired results.

Posted by: Doug B. | Jun 20, 2017 8:41:25 PM

Doug--as you know, I harshly criticized the NC Supreme Court in Packingham.

Your explanation is what I am getting at--you refrain from saying "lawless," but then you say that a lower court judge "strain[ed]" to get to a particular result--even though that result is plainly at odds with how SCOTUS has interpreted AEDPA (numerous times). What you describe with respect to this decision, notwithstanding the labels, is decidedly not how judging is supposed to work.

Doesn't Ohio, as a litigant, have a right to judges who don't "strain"? One would think so.

Posted by: federalist | Jun 21, 2017 8:50:24 AM

I agree, federalist, that all litigants have a right to adjudication by judges who are not results-oriented. And yet, as I think the Realists and the Crits have long highlighted, human realities and socialization likely contributes to all judges being results-oriented in at least some ways and in some cases. The Chief Justice used the "umpire" metaphor in his confirmation hearings because it is so very appealing as a simplistic account of judging. But sophisticated lawyers (and surely the Chief himself) know the reality of judging is much more dynamic and messy.

Moreover, and explaining the AEDPA reality in capital cases, I think a significant number of judges and lawyers would say it is appropriate and perhaps even constitutionally required to "strain" to find ways to question death sentences. If and when one believes that life is a value qualitatively above all others (both morally and in our Constitutional structure), then one should "strain" to safeguard that value. Again, I am not endorsing this view of adjudication, just trying to explain what leads to the judicial actions we see in this capital case and some others.

Posted by: Doug B | Jun 21, 2017 11:17:26 AM

Doug, I know you aren't supporting. What you are doing is damning Judge Donald . . . .and not acknowledging that's the import of your words.

Posted by: federalist | Jun 21, 2017 12:39:07 PM

I am committed, here and elsewhere, to trying to understand and explain the work of judges, federalist, not damn them. I know you and some others are often eager to damn judges, and you might want to use my words to make your case. But know that it is you who are doing the damning.

Posted by: Doug B. | Jun 21, 2017 2:13:46 PM

Understanding and explaining can be damning . . . . your words do just that. You don't use the language of 'rat judges (that's almost as good as the "wise [sic] Latina")--but saying that a judge "strain[ed]" to get to a result that helped a capital murderer in the face of specific and well-settled law is probably more damning than asking "what is it with 'rat judges and AEDPA"? (By the by, there's no indication that, even without AEDPA, the Ohio Supreme Court made reversible error in the Sutton case.)

Posted by: federalist | Jun 21, 2017 4:21:26 PM

This is a somewhat amusing thread. Judge Bernice Donald stiffed a litigant (the State of Ohio) and, let's face it, justice by "strain[ing]" to reach a result and along the way treated a law as a hurdle and something not to be "respected." These are the words of a law professor at a prestigious law school.

I wonder what Bill Otis would say.

Posted by: federalist | Jun 22, 2017 9:22:39 AM

federalist, what strikes me as most amusing is your surprise that I call them like I see them and/or that this thread of commentary could not be applied in lots of other settings. I can give you cites to literally hundreds of opinions in which state and federal judges appeared to be straining to avoid the "hurdle" of rulings like Apprendi and Blakely which they plainly did not "respect."

Heck, Justice Breyer in Harris said he was not yet ready to "accept" Apprendi. And Justice Scalia in Plata essentially called for distorting the plain meaning of the PLRA law to stiff prisoners in California because he plainly did not like that it allowed for prisoner release orders.

As I see it, federalist, you are doing an amusing lawyer version of Captain Louis Renault in this thread by being "shocked -- shocked -- to find that a law professor recognizes that judges can be results-oriented in their decision-making."

Posted by: Doug B | Jun 22, 2017 10:07:32 AM

First of all, Doug, Scalia's opinion in Plata, which deals with the limitations of judicial fact-finding etc. wasn't distorting squat. And Breyer, you do realize that he is a Supreme Court Justice who openly announced his view, which, of course, makes his Apprendi statement a virtue.

Your attempt to lump in Donald's oeuvre with Breyer and Scalia is telling.

Posted by: federalist | Jun 22, 2017 12:16:41 PM

federalist, aren't we are discussing judges straining to avoid a result they do not like based on a law they do not respect? I can see no other way to describe what Breyer is doing in Harris, and while you want to applaud his candor, I find disturbing that he feels it proper not to "accept" a precedent because he does not like where that precedent leads. And here is what Scalia said in Plata: "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa." In other words, says Scalia here, a result that makes sense to me seems so justified by other factors, I feel we should "shape the law" to get that result rather than follow the law to another result. Perhaps you would praise Judge Donald if, at the end her opinion, she quoted this line and said that her view of "tradition and common sense" helped lead her to her ruling even though some might see the law differently.

My point is not to assert that all of these decisions are identical, but rather to highlight just two of so many possible examples of judges with a particular desired result in mind straining to elide a law that they did not like/respect. If you want still other examples, I can give you plenty, plenty more from state court or lower federal court. But I would think you savvy enough to get these fundamentally legal realist/Crit points. Indeed, I will say again that what amazes me is Renault-like amazement that a law professor would call out judges for being results-oriented in decision-making. Assailing jurists for being results-oriented is part of the daily bread of the legal academy.

Posted by: Doug B | Jun 22, 2017 5:02:22 PM

First of all: Breyer dissented in Apprendi--there is nothing wrong with continuing to vote that way and assert his view of the Consitution--he is a Supreme Court Justice--Thomas does the same thing with the FAA (Federal Arbitration Act)--that is the quintessential judicial function at the SCOTUS level. Had Donald said, "Look, I don't care that SCOTUS has said X, I believe Y and I am going to rule according to Y", then at least her defiance (as a lower court judge) is out in the open. And as for Scalia in Plata--come on--do we really need to revisit that nonsense--i.e., that releasing criminals could increase public safety? And Scalia makes absolutely valid points

Second of all, there's "results-oriented" and then there's "results-oriented"--Donald asserted that the Ohio Supreme Court's judgment didn't withstand AEDPA--that's just plain wrong, and your posts here in gentle terms, but unmistakable import, call her out. You've acknowledged that Ohio, as a litigant, was shortchanged and that she ignored black-letter law. That others do it is no excuse, and you are trying to avoid the import of your words.

Posted by: federalist | Jun 22, 2017 7:25:02 PM

federalist, you are the one trying to avoid the import of Justice Scalia's words in Plata where he stated, in no uncertain terms, that the law should be "shaped" rather than followed to reach his desired result. The only difference is that you like the result Scalia strained to reach because he did not like aspects of PLRA, whereas you do not like the result that Donald strained to reach because she seemingly does not like aspects of AEDPA. You can admire Scalia's candor, but you really must admit that he is stating in no uncertain terms in Plata that he believes the law should follow desired case outcome rather than to have the outcome follow from the law.

In the end, your quaint statement about the difference --- there's "results-oriented" and then there's "results-oriented" --- may get to the nub of this all. You may think it fine to be results-oriented in favor of the state and public safety, but not so in favor of criminal defendants and individual rights. But some would say the Constitution (whether in original or living spirit) demands the inverse so that judges should always err on the side of defendants and individual rights. I am not asserting that Donald here is being more faithful to our Constitution than Scalia was in Plata, but she might well think she is (just like Breyer surely really thinks the Constitution now calls for declaring the death penalty per se unconstitutional).

Posted by: Doug B. | Jun 22, 2017 10:48:35 PM

Doug, you rip Scalia's words out of context--I am going off memory, but what Scalia was getting at was the inherent limitations of the judicial process in the public litigation context. Congress, of course, is presumed to legislate against that backdrop. And, of course, Scalia is open and forthright about it.

Donald either didn't know better, or knew and didn't care. Huge difference, and you know it.

As for my thumb on the scale, I think you'd be very very hard-pressed to find a single statement of mine that shows that I believe that individual rights should be blown off.

Posted by: federalist | Jun 23, 2017 9:07:44 AM

Here is more context to refresh your memory, federalist: After the sentence I quoted, Scalia says "One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd." Again, I give Scalia points for candor: after having called for the law to be "shaped" a certain way, he then expects judges to "bend every effort to read the law in such a way" to avoid a result that he considers "outrageous."

You can try to put as much lipstick on the Plata pig as you would like, but it is really the same story as what Donald does (albeit with more candor). Scalia did not like that a federal statute, PLRA, supported a result he disliked (a big prisoner release order), and he advocated for judges to shape/bend that law to avoid a result he did not like. Similarly, Donald did not like that a federal statute, AEPDA, supported a result she disliked (affirming a death sentence she thought flawed), and she ruled that the law could be interpreted to avoid a result she did not like.

To the extent there is a real difference, federalist, it ultimately goes to whether judges "ought to shape the law" and "bend every effort to read the law in such a way" to help the state or to help criminal defendants. Reasonable arguments can be made in either direction based on the US Constitution and on the basis of other structural and moral considerations. But what is not reasonable is to suggest that only "bad" or "'rat" judges are interested in shaping/bending the law to reach certain results. All judges do this in some way or another, and many judges, like the late Justice Scalia, plainly think it appropriate to expressly advocate that judges do exactly this kind of results-oriented judging.

Posted by: Doug B | Jun 23, 2017 12:30:36 PM

Doug, you get it so wrong on Scalia, I don't know where to start. First of all, by using the passive voice, Scalia is showing that events/traditions etc., which are outside of judicial control, should shape (inform) how a judge does his/her work (he has another similar quote on the First Amendment). Wow. Plus, Scalia invoked absurdity, which is a time-honored judicial doctrine. WOW. Plus, he's arguing that the order violated PLRA. So please stop. You are 100% wrong on this. It's embarrassing.

Donald, on the other hand, failed to apply a straightforward standard with tons of SCOTUS opinions saying, yes, AEDPA means this. And maybe reasonable arguments re: AEDPA can be made, but at this point, it is unreasonable to hold, as a lower court judge, that AEDPA doesn't mean what it says about the requirement of unreasonability on the part of the state court judges.

Posted by: federalist | Jun 23, 2017 4:17:22 PM

did not see your last comment until now, federalist, and I just wanted to conclude by quoting in full the Scalia passage that I think quite fairly shows the late Justice advocating for outcome-oriented statutory interpretation:

"There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result."

Scalia says here, in no uncertain terms, that he think a view of the "proper outcome" in this case "ought to shape the law, rather than vice versa." He follows up by suggesting a court should "bend every effort to read the law" in order to avoid what he views an "outrageous result." And, in light of such Scalia advocacy, perhaps a judge who believes a "proper outcome" is reversing a problematic state death sentence feels justified seeking to "bend every effort to read" AEDPA to avoid the "outrageous result" of upholding that death sentence.

Posted by: Doug B. | Jul 2, 2017 2:37:51 PM

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