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October 17, 2016

Interesting lengthy dissent from SCOTUS cert denial from Justice Sotomayor joined (only) by Justice Ginsburg

There is a bit of interesting news with today's otherwise dull SCOTUS order list in the form of a lengthy dissent from the denial of certiorari penned by Justice Sotomayor and joined by Justice Ginsburg.  The dissent in Elmore v. Holbrook is available here, and it gets started and ends this way:

Petitioner Clark Elmore was convicted of murder in 1995 and was sentenced to death.  His court-appointed lawyer, who had never tried a capital case before, knew that Elmore had been exposed to toxins as a young adult and that he had a history of impulsive behavior.  A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man. Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime.  As a result, the jury did not hear that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps.  The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. The jury heard only from an assortment of local judges that Elmore had looked “dejected” as he pleaded guilty to murder, not from the many independent witnesses who had observed Elmore’s searing remorse.

The Constitution demands more.  The penalty phase of a capital trial is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976).  It ensures that a capital sentencing is “humane and sensible to the uniqueness of the individual.”  Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Elmore’s penalty phase fell well below the bare minimum guaranteed by the Constitution.  His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present. And had the jury known that Elmore — who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed — might be brain damaged, it might have sentenced him to life rather than death.

This Court has not hesitated to summarily reverse incapital cases tainted by egregious constitutional error, particularly where an attorney has rendered constitutionally deficient performance. See, e.g., Hinton v. Alabama, 571 U.S. ___ (2014) (per curiam); Sears v. Upton, 561 U.S. 945 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30 (2009) (per curiam). This case plainly meets that standard. For that reason, I respectfully dissent from the denial of certiorari....

All crimes for which defendants are sentenced to death are horrific. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concurring) (slip op., at 6–10).  But not all defendants who commit horrific crimes are sentenced to death.  Some are spared by juries.  The Constitution guarantees that possibility: It requires that a sentencing jury be able to fully and fairly evaluate “the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).  That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored — especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death.  Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy.  I respectfully dissent from the denial of certiorari.

UPDATE: In the comments, Cal. Prosecutor highlights this notable new post by Kent Scheidegger at Crime & Consequences to provide more context for understanding this lengthy dissent from a SCOTUS cert denial.  Here is how that post gets started and ends:

The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office....

Defending people who have committed horrible crimes is not easy.  Frequently tough choices must be made.  If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.

October 17, 2016 at 10:11 AM | Permalink


Two thoughts at the dissent.

First, it partakes of the overly broad view of Strickland that defense counsel must exhaustively investigate before rejecting a potential defense. While there are some post-Strickland cases that share that flaw, Strickland makes clear that -- even in a capital case -- counsel only must engage in sufficient investigation to make a reasonable determination whether further investigation is necessary. If the initial investigation makes it appear that further investigation will not be productive, counsel does not need to waste time doing a thorough investigation on the off-chance that he will find a needle in the haystack.

Second, perhaps because of this broad view of Strickland, the dissent focuses on the contrary to or unreasonable application prong of Section 2254. The better argument, however, in light of the recitation of the evidence in the dissent, might have been on the issue of the unreasonable determination of fact. That, however, may be the product of how the petition framed the issues presented. (The question presented focused more on the broad Strickland standards. The argument section focused primarily on the theory that the Ninth Circuit decision on Strickland ignored Supreme Court precedent and did not suggest that the state courts unreasonably determined the facts.) The Supreme Court has been dancing around addressing what is an unreasonable determination of fact for a long time. If habeas counsel had focused on the unreasonable determination prong in the petition, this case might have been a good avenue for getting some better guidance on that issue.

Posted by: tmm | Oct 17, 2016 10:39:59 AM

All that effort by the state of Washington for nothing. Governor Inslee won't allow executions and is going to be re-elected.

Posted by: DaveP | Oct 17, 2016 1:32:23 PM

Prof. Berman,

There appears to be considerably more to this story. Crimes & Consequences quotes at length from Washington's Opposition Brief which lays out in detail the tactical decision made by the defense attorney with homicide experience in choosing remorse over a mental defense.

I am surprised but not shocked that Justices Ginsburg & Sotomayor would choose to present such a one-sided dissent.

Posted by: Cal. Prosecutor | Oct 17, 2016 1:57:14 PM

The dissent notes: "Komorowski had never previously worked on a capital case." This isn't the same as "homicide experience."

"Tactical decisions" can be ill conceived so that alone doesn't answer the question either. The dissent notes that the lawyer did do some due diligence including talking to a more qualified advocate but argues it wasn't enough. This includes from what I can tell arguably not enough to reasonably have enough to make an appropriate "tactical decision." Of course, as suggested by tmm, the rules there are nuanced.

Note for instance, e.g., the dissent DOES discuss how a lower court argued the various reasons the choices made were acceptable including to prevent rebuttal evidence (cited in the brief in opposition). The dissent argues it is not enough. Now, I'm not going to try to debate the weeds there. But, it's there. It isn't surprising that it is somewhat of a close case if only two (not even Breyer) wanted to grant cert. (at least on the record). Clearly, there is room for disagreement here; I am far from "shocked" if some so strongly disagree that they think a dissent -- merely to a denial of cert. so less worthy of the detail of a fully argued case -- would be "one-sided" hack work of some sort.

But, I'm more open to giving each side more respectable judgment.

Posted by: Joe | Oct 17, 2016 3:09:29 PM

Um, Joe, why would we give Ginsburg any respectable [respectful??] judgment? She ragged on Trump--wildly inappropriate given her position. She approvingly cited Judge Bye's ridiculous "high school science experiment" dissent with approval.

At the end of the day, the idea is that we can parse all sorts of things with ineffective rep., but really, the question is--was the prosecution's case given meaningful adversarial testing--the defense counsel's work here passes that test.

This was a truly monstrous crime. And, quite frankly, neither Ginsburg nor Sotomayor have any credibility when it comes to death cases.

Posted by: federalist | Oct 17, 2016 3:42:01 PM

The elephant in the room is this snippet from the brief to which Ken linked. "The report indicated that, after raping Kristy, Elmore appreciated the seriousness of his act and he decided to kill Kristy before she regained consciousness."

Doug, IIRC, has suggested in the past that one of the problems with the harsh treatment of sex offenders is that it will make them more likely to kill to cover up their crimes in order to render their victim silent. The prosecutor's brief in the case implies that Doug's past concern is no idle worry, so I fail to grasp why he has not been trumpeting it to the skies. Indeed Doug I congratulate you. I would have thought the rapist who would kill to silence his victim was non-existent but it seems that I was wrong on that score.

Posted by: Daniel | Oct 17, 2016 7:07:58 PM

The following facts are from the Washington A.G's brief:

"After raping Kristy, Elmore choked her with his hands, then wrapped a belt
around her neck and cinched it tightly. App. 39. Elmore then took a nine-inch
needle-like tool from his toolbox, and forced it into Kristy's left ear approximately
five and a half inches, piercing her brain. App. 39. Kristy was still making noises, so
Elmore covered her head with a plastic bag and repeatedly hit her skull with a
sledgehammer until he was sure she was dead. App. 39. Elmore purposely covered
Kristy's head with the plastic bag to prevent leaving evidence in the van when he
hit her with the sledgehammer. An autopsy revealed that Kristy was alive
throughout the entire attack as Elmore strangled her, drove the needle into her
brain, and began bludgeoning her head. App. 40. Elmore left Kristy's nude body in
the woods, covered with a plastic tarp. App. 39. Elmore then got back into his van
and drove back to town, disposing of evidence as he drove. App. 39."

As far as I'm concerned, Elmore is a mad dog who has forfeited his right to life.

Posted by: anon11 | Oct 18, 2016 3:03:37 PM

He doesn't have much of a "life" at the moment.

There are are number of people who have murdered people heinously. A narrow number have been sentenced to die. If he truly is a "mad" dog, which is actually somewhat the claim, he would not have the level of guilt now understood to warrant death.

Posted by: Joe | Oct 18, 2016 3:30:01 PM

Joe, sorry. we disagree on this one. He breathes. He talks. He listens. He deserves a bullet in the head.

Posted by: anon11 | Oct 18, 2016 3:44:14 PM

If he is "mad," that sounds like he is insane or otherwise not competent. A mad dog is shot for our safety or perhaps for his/her own good. We don't do that with the insane people. It was deemed unconstitutional. If it is a matter of "deserving," we do disagree, in part because doing that while living in a small cell is very serious punishment. A few people actually WANT to die since they find that so horrible.

The horrible nature of the crime is not debated. Any number of people not executed did very horrible things.

Posted by: Joe | Oct 18, 2016 6:52:25 PM

"Any number of people not executed did very horrible things."

So. What.

Posted by: federalist | Oct 19, 2016 4:25:18 PM

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