McDowell v. Calderon

• Decision Date: 30 June 1997
• Docket Number: No. 96-99000,96-99000
• Citation: 116 F.3d 364
• Parties: 97 Cal. Daily Op. Serv. 3875, 97 Cal. Daily Op. Serv. 5175, 97 Daily Journal D.A.R. 6561, 97 Daily Journal D.A.R. 8418 Charles E. McDOWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 364

116 F.3d 364

97 Cal. Daily Op. Serv. 3875, 97 Cal. Daily

Op. Serv. 5175,

97 Daily Journal D.A.R. 6561,

97 Daily Journal D.A.R. 8418

Charles E. McDOWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee.

No. 96-99000.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 21, 1996.

Decided Feb. 26, 1997.

Amended May 23, 1997.

Filed June 30, 1997. ^*

Andrea G. Asaro, Rosen, Bien & Asaro, San Francisco, CA, for petitioner-appellant.

Robert F. Katz, Deputy Attorney General, Los Angeles, CA, for respondent-appellee.

Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding. D.C. No. CV-90-04009-MRP.

Before: WIGGINS, THOMPSON and TROTT, Circuit Judges.

Opinion by Judge DAVID R. THOMPSON; Partial Concurrence and Partial Dissent by Judge TROTT.

Prior Report: For Majority Opinion, see 107 F.3d 1351.

ORDER

The opinion filed February 26, 1997 and published at 107 F.3d 1351 is amended by deleting Judge Trott as concurring in the majority opinion, and by adding to the majority opinion Judge Trott's concurring and dissenting opinion filed herewith.

With this amendment, Judges Wiggins and Thompson have voted to deny the petition for rehearing. Judge Thompson has voted to reject the suggestion for rehearing en banc, and Judge Wiggins recommends rejection. Judge Trott has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The suggestion for rehearing en banc is being circulated to the entire court. An order accepting or rejecting that suggestion will be entered in due course.

TROTT, Circuit Judge, concurring and dissenting:

I

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court said that trial by jury is "fundamental to the American scheme of justice," id. at 149, 88 S.Ct. at 1447. In expanding on this statement, the Court observed that

The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power-a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.

Id. at 155-156, 88 S.Ct. at 1450-51. A jury cannot fulfill this historic role in our Government, however, if it does not follow the law. It is not an unguided missile free according to its own muse to do whatever it wants. To accomplish its purpose as chartered in Duncan, a jury must be instructed properly as to the relevant law and as to its function in the fact-finding process. It also must follow these instructions. Otherwise, it too might exercise power in a manner thoroughly arbitrary, oppressive, or eccentric.

This demand is especially keen in a death penalty case where, as in California, the jury is the sentencer and decides whether a defendant shall live or die. The Supreme Court has made it abundantly clear, in a series of cases going back for almost twenty years, that for a jury determination of death to stand against Eighth Amendment scrutiny, the jury's discretion must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2933, 49 L.Ed.2d 859 (opinion of Stewart, Powell and Stevens, JJ.) (1976)).

This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "standardless [sentencing] discretion." It must channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance" and that "makes rationally reviewable the process for imposing a sentence of death." As was made clear in Gregg, a death penalty "system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] could occur."

Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764. (citation omitted). The Court reiterated this message in Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990), saying, "When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process."

On occasion, however, even though the instructions are flawless, jurors become confused and untracked. When they do, the risk is that any result reached by them, including a sentence of death, may not square with the law they are bound to apply. Accordingly, the unremarkable rule is that "[w]hen a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405-06, 90 L.Ed. 350 (1946). As the Seventh Circuit has said, Bollenbach places on the trial judge "a duty to respond to the jury's request with sufficient specificity to clarify the jury's problem." Davis v. Greer. 675 F.2d 141, 145 (1982). This duty exists among other reasons because " '[i]n a trial by jury ..., the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.' " Bollenbach, 326 U.S. at 612, 66 S.Ct. at 405 (quoting Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933)). Moreover, when constitutional requirements are involved, the proper execution of this duty is a matter of insuring due process of law as guaranteed by the Fourteenth Amendment. Cf. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (jury instruction violates Due Process Clause only if it affects some constitutional right).

II

In the matter before us, we confront an evident case of serious jury mistake and confusion. As Judge Thompson correctly says, "[e]leven jurors were confused and mistakenly thought they could not consider the eight instances of McDowell's background as mitigating evidence."

Given the Eighth Amendment rules mandated by the Supreme Court in Furman, Gregg, and their offspring, to say that the jury's mistake and confusion is of great constitutional concern is an understatement. In order to reach in accord with these rules a principled life or death decision, a jury must consider the evidence put forward by a defendant in mitigation of his culpable behavior. Such consideration is a constitutional imperative. As a plurality of the Court said in Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), five years before McDowell's trial:

There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.

A majority of the Court repeated this message in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), five months before the murder for which McDowell stands convicted. The issue in Eddings was not the constitutionality of a limiting statute as in Lockett, but of a sentencing trial judge's conclusion that he could not " 'in following the law' " " 'consider the fact of this man's violent background.' " Id. at 112-13, 102 S.Ct. at 875-76. The Court interpreted this statement to mean that "the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact; rather he found that as a matter of law he was unable even to consider the evidence." Id. at 113, 102 S.Ct. at 876 (emphasis in original). In reversing the judgment of death, the Court offered this reasoning:

Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had...