Deutscher v. Whitley

• Decision Date: 20 April 1993
• Docket Number: 88-2579,Nos. 88-2552,s. 88-2552
• Citation: 991 F.2d 605
• Parties: Henry DEUTSCHER, Petitioner-Appellant-Cross-Appellee, v. Harol WHITLEY, Warden of the Nevada State Prison, and Brian McKay, Attorney General of the State of Nevada, Respondents-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 605

991 F.2d 605

Henry DEUTSCHER, Petitioner-Appellant-Cross-Appellee, v. Harol WHITLEY, Warden of the Nevada State Prison, and Brian McKay, Attorney General of the State of Nevada Respondents-Appellees-Cross-Appellants.

Nos. 88-2552, 88-2579.

United States Court of Appeals, Ninth Circuit.

April 20, 1993.

David J. Burman, Perkins Coie, Seattle, WA, for petitioner-appellant-cross-appellee.

David F. Sarnowski, Chief Deputy Atty. Gen., Carson City, NV, for respondents-appellees-cross-appellants.

On Remand from the United States Supreme Court.

Before SKOPIL, FARRIS, and HALL, Circuit Judges.

FARRIS, Circuit Judge:

Henry Deutscher has shown to our satisfaction that it is more probable than not that, but for his constitutionally deficient counsel, he would not have been sentenced to die. Deutscher v. Whitley, 946 F.2d 1443 (9th Cir.1991) (setting aside Deutscher's death sentence). The Supreme Court, --- U.S. ----, 113 S.Ct. 367, 121 L.Ed.2d 279, directs us to reconsider our judgment in light of Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The concern is not the accuracy of our conclusion but the measuring rod that we used.

In Sawyer, the Supreme Court held that to excuse the filing of a second habeas corpus petition, "one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Id. --- U.S. at ----, 112 S.Ct. at 2517. In Sawyer, under Louisiana law, a person who is convicted of first-degree murder is eligible for the death penalty if at least one valid aggravating circumstance is found. The jury found three statutory aggravating factors and an absence of statutory mitigating factors. The jury sentenced Sawyer to death.

Sawyer claimed that because one of the three aggravating factors was found inapplicable by the Louisiana Supreme Court, and because mitigating evidence was kept from the jury due to the ineffective assistance of counsel, he was not eligible for the death penalty. The Supreme Court rejected the argument, stating that eligibility in Louisiana is determined by requiring a finding of at least one aggravating circumstance. Even without the one invalid aggravating factor, two remained. Under Louisiana law, mitigating factors are not considered in determining eligibility. Sawyer therefore could not show by clear and convincing evidence that a reasonable juror would not have found both aggravating factors which made him eligible for the death penalty.

In sharp contrast to Louisiana, Nevada is a "weighing state." A Nevada sentencer must consider and weigh both mitigating and aggravating circumstances before it can determine whether a defendant is eligible for the death penalty. The statute provides:

Every person convicted of murder of the first degree shall be punished:

(a) By death, only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances.

Nev.Rev.Stat.Ann. § 200.030(4)(a) (1992) (emphasis supplied).

The jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.

Id. § 175.554(2) (1992) (emphasis supplied). A defendant is eligible for the death penalty in Nevada only if the aggravating factors outweigh the mitigating factors. See DePasquale v. State, 106 Nev. 843, 803 P.2d 218, 223 n. 10 (1990), cert. denied, --- U.S. ----, 112 S.Ct. 99, 116 L.Ed.2d 70 (1991). The Supreme Court's refusal in Sawyer to consider mitigating evidence does not extend to a weighing state such as Nevada, where consideration of mitigating evidence necessarily precedes the eligibility determination.

The Supreme Court recognized that the eligibility determination may include more than consideration of aggravating factors. The Court stated that "[s]ensible meaning is given to the term 'innocent of the death penalty' by allowing a showing in addition to innocence of the capital crime itself a showing that there was no aggravating circumstance or that some other condition of eligibility had not been met." --- U.S. at ----, 112 S.Ct. at 2522 (emphasis supplied). While Louisiana considers only aggravating factors in the eligibility determination, the Court also recognized that "[s]tatutory provisions for restricting eligibility may, of course, vary from state to state." Id. --- U.S. at ---- n. 12, 112 S.Ct. at 2522 n. 12.

In short, Sawyer requires the consideration of mitigating evidence in those states like Nevada that require balancing of mitigating factors against aggravating factors; however, the Supreme Court sharply limits this inquiry when it is raised in a subsequent petition for habeas relief. In those instances, the Court requires a showing of innocence of the death penalty by clear and convincing evidence, thereby rejecting the "more probable than not" standard that we used in Deutscher II.

No one can know with the degree of certainty required, what a jury, properly instructed, would have done in the penalty phase had it been presented the evidence in mitigation that should have and would have been presented, but for the sole reason that counsel was incompetent. Unless a trier of fact does the balancing, courts on appeal can only speculate. See Sawyer, --- U.S. ----, 112 S.Ct. at 2522 ("[I]t is a far more difficult task [than ruling on whether the offense itself was committed] to assess how jurors would have reacted to additional showings of mitigating factors...."). One who is about to die should not be denied the certainty that is mandated by the Constitution because of a rush to "get on with it." See Gardner v. Florida, 430 U.S. 349, 360, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977) ("[I]f the disputed matter is of critical importance, the time invested in ascertaining the truth would surely be well spent if it makes the difference between life and death.").

We recognize that one who is sentenced to death need not have excessive review before the penalty is carried out, but the constitutional mandate of adequate review requires strict adherence. See Barefoot v. Estelle, 463 U.S. 880, 887-88, 103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 1090 (1983). To provide less renders the death penalty cruel and unusual punishment. See Clemons v. Mississippi, 494 U.S. 738, 751-52, 110 S.Ct. 1441, 1449-50, 108 L.Ed.2d 725 (1990).

The standard "more probable than not" would have provided adequate review. Perhaps "clear and convincing" will, too, but one thing is absolutely certain--until the Supreme Court speaks again, that is the standard to be applied. Sawyer, --- U.S. at ----, 112 S.Ct. at 2517.

Time apparently influences the constitutional standard. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 580, 105 S.Ct. 1005, 1033, 83 L.Ed.2d 1016 (1985) (Rehnquist, J., dissenting) ("I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court."). In the Old West, time was the only, the...