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June 4, 2011

Montana murder defendant raising Ring challenge to state's death penalty

As detailed in this local article, which is headlined "Tyler Miller murder case: Attorneys challenge death penalty," the lawyers "for accused double murderer Tyler Michael Miller are asking a Flathead District judge to rule that Montana’s death penalty statutes are unconstitutional."  Here is more:

Miller, 34, has been charged with two counts of deliberate homicide for the Christmas Day shooting deaths of his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter Alyssa Burkett.  The Flathead County Attorney’s Office filed amended charges March 9 indicating it would seek the death penalty for Miller.

Miller’s attorneys Ed Sheehy and Noel Larrivee submitted a motion Wednesday stating that Montana’s death penalty statutes are unconstitutional because sentencing powers are vested in judges rather than juries.  The 19-page filing argues that the procedure violates the sixth and 14th amendments to the United States Constitution, which require that “other than prior convictions, any fact increasing the statutory maximum (sentence) must be submitted to a jury and proven beyond a reasonable doubt.”

The attorneys wrote that the Montana Code Annotated is flawed because it allows judges to evaluate whether or not there are mitigating or aggravating circumstances to support the death penalty and gives them the ultimate power to decide whether or not to pronounce a capital sentence.

June 4, 2011 at 07:55 AM | Permalink


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the issue raised here is extraordinarily complicated, and one which I have spent hundreds of hours thinking about. Here are some comments.

In my view, Justice Thomas' concurring opinion in Apprendi and Justice Scalia's concurring opinion in Ring, make it clear that Apprendi/Ring is not about bestowing on the jury a constitutional role to play in sentencing, but about, as Thomas says, "what is a crime." In Ring, Scalia says, " unfortunately (for breyer's opinion relying on eighth amendment concepts) today's decision has nothing to do with jury sentencing." Also, by definition, the sixth amendment is limited to criminal prosecutions, not sentencing proceedings.

So, if I were the montana defense lawyers , I wouldn't be arguing that Apprendi/Ring requires that juries determine sentencing issues. They have to argue that the decision in question is a determination of an element of a criminal offense which is greater than murder simpliciter.

That doesn't mean all is lost, however. I am reading between the lines from a news account, which may not have it quite right, but what it sounds like to me is that the murder being "brutal" is the Apprendi/Ring fact which elevates the offense from what Scalia in part III of his Sattazahn opinion calls "murder simpliciter" to the greater offense of "murder with one or more aggravating factors." (murder simpliciter is the intentional killing of an ordinary person)

So, the question arises, "can the use of the 'fact' of a 'brutal' killing pass due process vagueness muster when 'brutality' is the sole Apprendi/Ring fact elevating the crime from noncapital murder simpliciter to capital aggravated murder? As I wrote in a law review article on Ring in the NC Central Law review a few years ago, I think not.

A second argument flows out of the way the Washington state supreme court trumped the US Sup Ct in Recuenco, after SCOTUS held that Blakely error can be subjected to harmlessness analysis. The case went back to state court and Washington said Recuenco won because the court did not have jurisdiction to try the def for the aggravated offense because the ag wasn't alleged in the indictment. I am curious whether 'brutal murder' was submitted to the grand jury. (I'm assuming that Montana uses a grand jury. If not, then there are other issues. Cole v Arkansas says you can't be tried for a crime you haven't been charged with and I don't believe a filing by a DA can "charge" a def with a crime.

This is all very murky and uncharted territory.


Posted by: bruce cunningham | Jun 4, 2011 11:17:24 PM

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