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April 24, 2007
Colorado Supreme Court capitalizes Blakely
A thoughtful reader kindly sent me news of a Colorado Supreme Court ruling which examines Blakely in the context of the death penalty and guilty pleas. Here are the basics from the decision in Colorado v. Montour, No. 02SA365 (Colo. Apr. 23, 2007) (available here):
In this appeal, we exercise our jurisdiction to conduct an independent review of the death sentence of Edward Montour, Jr. We hold that Colorado's death penalty statute cannot deprive the defendant of his Sixth Amendment jury trial right on the facts essential to the death penalty eligibility determination when that defendant pleads guilty. Here, Montour pled guilty and pursuant to the Colorado death penalty statute, his guilty plea automatically waived his right to have a jury determine his sentence. We hold that the statute unconstitutionally links the waiver of a defendant's jury sentencing right to his guilty plea. Hence, we affirm Montour's guilty plea and apply the severability clause in the death penalty statute to excise the unconstitutional language in the death penalty statute. We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea.
In the course of its rulings in Montour, the Colorado Supreme Court arguably extends Blakely in various ways. For this reason and others, it will be interesting to see if the state might try to appeal Montour to the US Supreme Court.
UPDATE: At Volokh, Orin Kerr has this effective head-scratching post that exposes some of the questionable aspects of the Montour ruling.
April 24, 2007 at 12:56 PM | Permalink
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» People v. Montour: from The Volokh Conspiracy
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Comments
I think this is probably one of the most interesting Blakely issues in the past 6 months. If I were the state I wouldn’t chance it. It would seem like a big risk to say: 1) I know the legislature put in a severability clause; but 2) I still think that juries shouldn’t be involved.
But, on the other hand, behind every bone-headed cert. petition is an attorney that wants to say he practiced before the Supreme Court.
Posted by: S.cotus | Apr 24, 2007 3:09:54 PM
I don't see how the Colorado Supreme Court's
position in Montour that the Sixth Amend.
guarantees a "right to jury trial on
sentencing facts" can be reconciled with
Justice Scalia's statement in Ring v Arizona
that "...the unfortunate fact is that today's
judgment has nothing to do with jury
sentencing." The Colorado court seems to
have accepted Justice Breyer's position
that the Constitution guarantees a jury
role in sentencing, contrary to the position
of the Blakely Five (now six after Cunningham)
At first blush, this opinion seems to reach
the right result for the wrong reason.
Bruce Cunningham
Posted by: bruce cunningham | Apr 24, 2007 4:11:46 PM
i litigated this issue in the trial court in a death penalty case: state v. ketterer. we argued a constitutional right to have a jury determine and weigh mitigating factors against the aggravating circumstances. on appeal, the ohio supreme court said that our guilty plea waived the issue, despite the prosecution's stipulation and agreement at trial that we could preserve the issue, then plead guilty.
Posted by: christopher pagan | Apr 24, 2007 4:41:19 PM
I don't understand the thinking behind the legislation. Why require a defendant who pleads guilty to be sentenced by a judge? It seems that avoiding a merits trial only saves a lot of uncertainty and expense. I assume that, maybe, the government/prosecutors thinks that this gives them an advantage in securing a death penalty, but I can't believe that's actually true.
Any explanation (better yet, actual legislative history) would be greatly appreciated.
Mark
Posted by: Mark | Apr 24, 2007 6:29:34 PM
I can't offer much legislative history, other than to say that the law was hastily enacted after Colorado's death row was cleaned out when its judge based sentencing scheme was thrown out. I suspect the idea was to make changes only where constitutionally required.
The Colorado Supreme Court decision also has to be understood in the context that this decision affects one and only one man, Mr. Montour, and is unlikely to recur. People who want to fight the death penalty go to trial on the merits (if only to fight for a shot at a conviction on the lesser included offense of second degree murder and to provide more context to the jury for the next phase), or cut a plea bargain that precludes a death sentence. Nobody ever pleas guilty to first degree murder without an assurance that the death penalty will not be imposed. Mr. Montour pleaded, pro se, because he wants to be executed.
Mr. Montour's competency was evaluated prior to the plea, but wasn't terribly convincing. This case allows the system to get a second shot at determining that Montour is competent and that state that his plea wasn't made in haste. The only potential future impact it has, in the capital context which is the only time there is jury sentencing in Colorado, is if another death penalty volunteer comes along.
Posted by: ohwilleke | Apr 25, 2007 11:59:41 AM
