Fascinating concurrence in Ninth Circuit capital case

Thanks to Capital Defense Weekly's post here, I took a look at the fascinating concurrence from Judge Ferguson in the capital habeas cases Morris v. Ylst, No. 05-99002 (9th Cir., May 9, 2006) (available here).  In Morris, the Ninth Circuit orders a new penalty-phase trial, but Judge Ferguson has a lot more to say about the exercise of prosecutorial discretion in capital cases.  Here is a sample:

I write separately to underscore the prosecutor's abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state's position that the three defendants are equally guilty of the felony murder of Van Zandt.  As long as a prosecutor's discretion in seeking the ultimate penalty — death — remains thus unbridled, the administration of the death penalty in the United States will violate the guarantees of due process and freedom from cruel and unusual punishment enshrined in the Constitution....

Over thirty years ago, the Supreme Court declared that death is different. The death penalty must be imposed fairly, without prejudice or whim, or it may not be imposed at all.  Furman v. Georgia, 408 U.S. 238 (1972); see Gregg v. Georgia, 428 U.S. 153, 188 (1976) (interpreting Furman).... Even as the courts have tried to limit the jury's discretion to impose the death penalty, "discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury." DeGarmo v. Texas, 474 U.S. 973, 975 (1985) (Brennan, J., dissenting from denial of writ of certiorari).  Here, the prosecutor's unbridled discretion to single out Morris for prosecution under the death penalty, when the guilt is equally spread among his co-defendants, is a rank example of "arbitrariness at an earlier point in the selection process." Id.  This sort of gross disparity in the treatment of equally guilty defendants "highlights the utter failure of the elaborate sentencing schemes approved by the [Supreme] Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States." Id. at 974-75....

The sentencing jury in this case must be permitted to consider the prosecutor's grossly disparate treatment of Morris's equally guilty co-defendants as a circumstance of the offense justifying a sentence less than death.  As the reasoning in my earlier concurrence makes clear, see In re Morris, 363 F.3d at 896 (Ferguson, J., concurring specially), providing additional mitigation instructions to the capital jury as a means of cabining prosecutorial discretion also avoids a separation-of-powers issue.  This Court in Redondo-Lemos determined that although an arbitrary exercise of prosecutorial discretion violates the Due Process Clause, there is no judicial remedy available because courts generally may not inquire into prosecutors' decision-making processes. 955 F.2d at 1299....  In this case, introducing evidence of the sentences received by Morris's co-defendants would not require the courts to investigate the internal charging decisions of the prosecutor. Instead, it would compel the prosecution to live with the charging decisions it made: if the jury found that the exercise of discretion in seeking the death penalty against Morris was arbitrary, it would be free to use that fact as a mitigating factor.