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May 25, 2010

Another notable dissent in Tenth Circuit habeas reversal of mass murderer's death sentences

Providing a notable case for comparing and contrasting to the Eighth Circuit work in Deegan today (basics here), the Tenth Circuit handed down its own fascinating split sentencing opinion in the capital habeas case of Hooks v. Workman, No. 07-6150 (10th Cir. May 25, 2010) (available here).  The majority opinion affirms the convictions, but reverses five death sentences, that were handed down by an Oklahoma jury to mass murderer Danny Keith Hooks. 

A nuanced partial dissent by Judge O'Brien focuses on the need for deference to the affirmance of these death sentences by the Oklahoma Court of Criminal Appeals (the OCCA), and it concludes this way:

In sum, the OCCA identified trial errors relating to Oklahoma law.  It also identified and employed the proper federal law for assessing the impact of those errors of state law — whether, taken as a whole, the errors denied Hooks a fair sentencing hearing.  At the end of the day it decided the errors, alone or in combination, did not entitle Hooks to relief.  The OCCA also identified and applied the general Lowenfield requirement that a defendant is entitled to an uncoerced jury decision. It concluded the sentencing jury was not coerced.  I am not sure it was correct in that assessment but I join the district court in concluding its decision was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, especially if its decision is afforded proper deference.  It was not unreasonable for the OCCA to conclude the horrific facts of this case (multiple murders by a previously convicted kidnapper/rapist), rather than a possible misunderstanding of the law or the stresses of jury service, motivated the jury to recommend five death sentences.

We have an interesting circumstance here. If the opinion of the district judge who originally considered these habeas claims is included, two federal judges think the OCCA’s assessment of the federal Constitutional issues was not objectively unreasonable and two think it was objectively unreasonable.  The State of Oklahoma is left with the resulting detritus.  So much for applied federalism and comity.

And where does our decision leave the State?  It can accept a federal court veto of the jury’s sentencing decision and settle for a life sentence.  Or it can empanel a new jury, which will not have heard the guilt phase evidence, and hope to convince the new jury to ratify the trial jury’s sentences.  And it will have to do so at least eighteen years after the murders were committed and time has scattered witnesses, eroded memories, rusted the community’s sense of outrage with this mass murder, dulled the voices of the victims’ families and turned the fire in the prosecutors’ bellies to ash (because the attention of new prosecutors has been diverted to more recent atrocities and the task of resurrecting and presenting a very old case to an uninformed jury is daunting, indeed).

May 25, 2010 at 06:09 PM | Permalink


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Garbage decision. Absolute garbage. The court is upset at Macy and so takes it out on the victims. Nice.

Posted by: federalist | May 25, 2010 6:56:12 PM

Macy is a garbage prosecutor. Absolute garbage. Misleads a jury in a capital case. Nice.

Posted by: sage | May 26, 2010 12:09:25 PM

Perhaps Macy is bad . . . . but that's no excuse to twist the law.

Posted by: federalist | May 26, 2010 1:35:48 PM

That seems like something the 9th would do. Hopefully, they will hear it enbanc and affirm the district court or maybe a summary reversal from SCOTUS would be good to teach the 10th a lesson on AEDPA. The OCCA was unanimous. Judge O'Brien stated that it was 2-2 with federal court judges. Surely, the 10th should realize an enbanc sitting is proper. When I first saw it, I was sure Judge Henry would be on the panel to reverse. Wrong.

Posted by: DaveP | May 26, 2010 2:51:59 PM

DaveP, there's history here--Macy has been savaged by the 10th Circuit for years. Macy certainly pushed the envelope, but the tossing of the death sentence (actually five) because of some unease about Macy (and I think it's clear that's what's going on here) is just plain wrong. Federal judges, especially those reviewing cases under AEDPA, need to understand that there are limits to their power. Here, they decided to strike a blow against Macy--unfortunately they wound up hitting a bunch of people who now have to endure a retrial. Clearly, death is the only just punishment here.

But the 10th in this case certainly has company. The Supreme Court routinely bends the rules for capital litigants. The Baze stays were an example of that. And the recent per curiam decision (Jefferson v. Upton) was an absolute joke--unless you think that unease about a death sentence is a categorical imperative requiring the setting aside of traditional rules about waiver etc.

Posted by: federalist | May 26, 2010 3:20:20 PM

There certainly is history here. Macy has been absolute garbage as a prosecutor for years. And perhaps the defendant is bad . . . . but that's no excuse to mislead the jury.

Posted by: sage | May 26, 2010 5:13:47 PM

has the OCCA reversed any convictions/sentences because of Macy? Yes,the Supreme Court always bends the rules for capital defendants: Troy Davis among others. I would not be surprised if they rule in favor of the petitioner in the Skinner case from Texas next term. I noticed another reversal at the 9th this week on AEDPA. Noonan and Berzon vs Ikuta on habeas from CA.

Posted by: DaveP | May 26, 2010 6:02:30 PM

daveP, I think that the OCCA has tossed a couple of Macy death sentences, but that's on memory. With respect to Skinner--I am not so sure. The facts are pretty egregious for the finding of a right to DNA testing here. I could see a "death is different" twisting of the rules though. The DA should probably just test the evidence.

Sage, so Macy was bad--the 10th tossed this death sentence because of coercion, not "misleading" and there was none, or to be more accurate, the OCCA reasonably concluded that there was none. Thanks for playing.

Posted by: federalist | May 26, 2010 9:03:57 PM

agreed the DA should test the DNA on Skinner. Put it to rest once and for all. Otherwise, it could be years before it is carried out if they reverse the 5th. Even if they affirm, it will be about a year before it can be done.
On the 10th circuit case: even the dissenting judge said he wasn't sure the OCCA was correct but he deferred to a unanimous court. Respect for them and AEDPA. If you want to get down to math: 7 judges have voted with the state and 2 for the inmate.

Posted by: DaveP | May 26, 2010 9:33:18 PM

I learned along time ago that there is only one word that rogue prosecutors truly understand: "REVERSED."

Kudos to the 10th. Let the accused be fairly tried by prosecutors with integrity next time.

Posted by: Michael R. Levine | May 27, 2010 11:13:47 AM

Federalist, the 10th did not "twist the law."
As the court pointed out "the OCCA agreed with Hooks’s contention that the prosecutors
misstated the law in an attempt to “diminish[] the jury’s individual sense of morality and mercy.” Id. at 316. In particular, the OCCA noted Miller and Macy had misstated the law in three key ways..."

An essential part of "the law" is that prosecutors argue fairly to penalty phase juries. Why should a death penalty be sustained when the prosecutors play dirty? Not in my court; and I respect your intelligence too much to think in yours as well.

Posted by: Michael R. Levine | May 27, 2010 11:22:29 AM

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