Ayers v. Belmontes (05-493)

“Unadorned factor (k)” and Boyde

At the time of Belmontes’s conviction and sentencing, the factor (k) instruction dictated that the jury could consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Cal. Penal Code § 190.3 (West 2006).

In Boyde v. California, the Court held that the instruction sufficiently informed a jury that they were not limited to the circumstances of the crime, but could also consider the defendant’s background (e.g., upbringing and education) and good character when determining whether to mitigate the defendant’s punishment to a life sentence instead of death. 494 U.S. 370. The Court determined that a jury instruction was insufficient only if there was a “reasonable likelihood” that the instruction would mislead the jury to ignore constitutionally relevant evidence. Id. at 380.

Ninth Circuit’s Argument in Belmontes v. Woodford

In Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003), the Ninth Circuit split “good character” evidence into two categories: evidence bearing on “culpability” and “forward-looking” evidence. See Brief for Petitioner at 15. The panel majority claimed that Boyde’s holding affirmed factor (k)’s efficacy regarding character evidence relating to the defendant’s guilt (e.g., because of the socioeconomic factors in which the defendant grew up, he is not fully responsible for the circumstances that led him to commit the crime). See Id. However, Boyde was silent on whether factor (k) sufficiently directed juries to consider character evidence that had no bearing on the defendant’s guilt but spoke to the defendant’s future prospects. See Id. The instruction was thus unconstitutional under the Eighth Amendment principles of Lockett v. Ohio, 438 U.S. 586 (1978), which held that an instruction cannot prevent a jury from hearing constitutionally relevant evidence, and under the specific dictate of Skipper v. South Carolina, 476 U.S. 1 (1986), which instructed that “the jury must consider the defendant’s past conduct as indicative of his probable future behavior” even if not related specifically to his culpability for the crime. See Skipper 476 U.S. at 22.

Ayer’s Boyde arguments

The first issue the Court will confront is whether this case is substantially different from Boyde. Ayers, the California Acting Warden, argues that Boyde held that factor (k) sufficiently guides a jury to consider the defendant’s future ability to be a productive member of a prison community. See Brief for Petitioner at 18–34. According to Ayers, Belmontes’s evidence in mitigation (his abusive upbringing, his caring relationships with decent friends and family members, and his good performance during a church-related program during prior commitment at the California Youth Authority, id. at 4) constitute the type of background and character evidence Boyde held that factor (k) permitted. Id. at 14.

Ayers claims that the Ninth Circuit’s distinction between “culpability” character evidence and “forward looking” character evidence is illogical and cannot be reconciled with Boyde. Id. at 15. According to Ayers, virtually all “good character” evidence is “forward-looking” because it allows the jury to infer about the defendant’s future behavior. Id. at 21. This is especially true at the penalty stage, in which character evidence has little mitigating value unless it permits such an inference. See Id. at 24. For example, if defendants Joe and Jane are both tried for murder, where Jane has a history of violence and Joe has does not, Joe may be worth saving, and not Jane, because Joe can be rehabilitated, while Jane cannot. Furthermore, Ayers claims that the evidence in Boyde was offered for a “forward-looking” purpose: to illustrate that Boyde had “strength of character” and thus could be rehabilitated. Id. at 24.

Ayers also contends that consideration of a defendant’s future behavior during capital sentencing is a long-established feature of the criminal justice system. Id. at 30. Ayers points to Brown v. Payton, 544 U.S. 133, which affirmed factor (k)’s efficacy in allowing jurors to consider Payton’s post-crime religious conversion. Id. at 29. Ayers also emphasizes that the instruction allows jurors to account for “age,” which suggests jurors are considering whether the defendant, with time and maturity, can adjust better to society. Id. at 33. According to Ayers, the Belmontes jurors could not have believed that all of Belmontes’s testimony as to future prospects was a “virtual charade” they could ignore in their balancing responsibility. Id. at 31.

Finally, Ayers highlights the high threshold for finding an instruction unconstitutional—that a court must find a “reasonable likelihood that a jury will apply the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 34 (quoting Boyde, 494 U.S. at 380). Because the trial court gave a special instruction that the enumerated circumstances were “merely examples of some of the factors” the jury could consider, Id. at 35, and because the prosecutor and defense both acknowledged that the jury could and should consider Belmontes’s future favorable prospects as mitigating evidence, there is no “reasonable likelihood” the jury would ignore Belmontes’s evidence. Id. at 39.

The Import of Payton

The Court could draw convenient parallels from its analysis in Brown v. Payton, but will have to determine whether Payton is applicable. First, the cases are different because the evidence presented in Payton pertained to actual post-crime conduct, while Belmontes deals with the jury’s license to speculate on future conduct. Second, as the lower court noted in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005), Payton is governed by the AEDPA, 28 U.S.C. § 2254 (2006), whereas Belmontes is not because the sentencing occurred before Congress enacted the statute. Under the AEDPA, a federal court will only review the state court’s actions if they are objectively unreasonable. The Court will have to recognize that in pre-AEDPA cases federal courts have more discretion in granting habeas corpus petitions in state cases.

Belmontes’s Boyde Arguments

Belmontes reiterates the Ninth Circuit’s position that Boyde is not a sufficient guide for the present case. He argues that Boyde was silent on whether factor (k) adequately guides the jury to consider potential future conduct. See Brief for Respondent at 37. He claims that factor (k) limits a jury’s focus on background evidence to considerations of guilt surrounding the crime. See Id. at 20. Belmontes contends that because factor (k) instructs juries to view background evidence which “extenuates the gravity of the crime,” this leaves no room for a jury to consider his potential positive future conduct. See id. at 37. In addition, he questions the validity of Boyde.

Furthermore, Belmontes argues that even if factor (k) was sufficiently clear to ensure that juries will contemplate future evidence in other situations, the unusual series of circumstances in his own penalty trial combined to convey to the sentencing jury that it was not permitted to consider a substantial part of the mitigation evidence, violating the Eighth and Fourteenth Amendments. See Id. at 17. There is a reasonable probability, Belmontes contends, that when the court declared that the factor (k) constituted a “listing” of factors that the jury must “balance,” it prompted the jury to ignore prior instructions and consider themselves unable to consider mitigation evidence regarding the defendant’s potential for productive living. See Id. at 27. According to Belmontes, Ayers ignores these case-specific factors. See Id. at 40.

The Teague Rule and Potential Retroactivity for Other Defendants

The second question the Court will confront in Belmontes is whether the lower court’s holding that unadorned factor (k) does not adequately inform jurors that they may consider future-looking evidence constitutes a “new rule” under Teague v. Lane, 489 U.S. 288. In Teague, the Court found that new criminal procedure laws would not apply retroactively to cases that became final before the law was created, with limited exceptions. Whether rules are “new” or based in precedent depends upon if reasonable minds could disagree about the significance of the precedent. See Brief for Petitioner at 42. The purpose of this doctrine is to prevent unfairness to others similarly situated who could not benefit from such relief.

The state argues that the Ninth Circuit’s decision violates the Teague non-retroactivity doctrine. See Id. at 41. The state presses that the circuit decision is unsupported by Lockett, and that, given Boyde and Payton, reasonable minds could disagree as to whether factor (k) gives sufficient guidance. See Id. at 44–46.

Belmontes contests that the Ninth Circuit’s ruling is not a new rule but is instead based in precedent. Belmontes points to language in Skipper, that “evidence that the defendant would not pose a danger if spared . . . must be considered as potentially mitigating,” and that “such evidence may not be excluded from the sentencer’s consideration.” See Brief for Respondent at 48 (quoting 476 U.S. at 5). Belmontes points also to Penry v. Lynaugh, 492 U.S. 302 (1989), in which the Court clearly stated that a similar rule Penry sought was not a “new rule’” under Teague because it was dictated by Eddings v. Oklahoma, 455 U.S. 104 (1982) and Lockett. See Id. at 48. Thus reasonable minds could not disagree about these rules because they are “well-settled.” Id. at 47.

There are two exceptions to the Teague rule: if the new rule placed the defendant’s conduct beyond the reach of the criminal justice system, or if compliance with the rule is necessary to adhere to the “bedrock” principles of “fundamental fairness” (The Court also articulated this as creating new “watershed rules of criminal procedure.” Teague, 489 U.S. at 311.). While the former exception will probably not apply to the Court’s analysis, the latter exception will generate some discussion.

If the Court determines that the lower court’s ruling is a new rule, it will also have to determine whether remedying the insufficiency of factor (k) is necessary to comply with the bedrock principles and fairness and justice. Lower courts have had trouble determining when to apply Teague retroactivity to defendants and thus application has not been uniform or predictable. See Katharine A. Ferguson, The Clash of Ring v. Arizona and Teague v. Lane: An Illustration of the Inapplicability of Modern Habeas Retroactivity Jurisprudence in the Capital Sentencing Context, 85 B.U.L. Rev. 1017, 1034 (2005). If the Court upholds the Ninth Circuit’s ruling, it will have an opportunity to better articulate the Teague rule and give capital defendants a better understanding as to when rulings in other cases may have an effect on their cases and avenues of appeal.