Does reviewing a sentencing error under Eddings v. Oklahoma constitute direct review which requires applying modern constitutional principles; and, does correcting that error mandate resentencing in a capital case by a trial-level sentence?
In this case, the Supreme Court will decide whether the Supreme Court of Arizona correctly weighed mitigating and aggravating factors when conducting an independent review of James Erin McKinney’s capital sentence, and whether the correction of the original sentencing error required resentencing by a jury at the trial level. McKinney argues that, by conducting a sentencing review, the state court reopened his finalized case, thus allowing the application of modern constitutional protections in his sentencing, which require resentencing by a jury. Arizona counters that the independent review conducted by the state court did not constitute direct review that reopened McKinney’s case and that McKinney’s sentence does not require review at the trial level. The outcome of this case will impact the retroactive application of newly established constitutional rights in capital sentencing and could afford a new opportunity for capital defendants for whom a judge conducted sentencing to be resentenced by a jury.
Questions as Framed for the Court by the Parties
(1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating findings to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.
In March 1991, over a span of two weeks, Petitioner James Erin McKinney (“McKinney”) and his half-brother committed two burglaries in Arizona, which resulted in the deaths of Christine Mertens and Jim McClain. McKinney v. Arizona at 2. McKinney was convicted of the first-degree murder of both victims. Id.
At the sentencing phase of trial, the prosecution presented multiple aggravating circumstances which qualified McKinney for the death penalty, namely that McKinney killed Mertens in an especially cruel manner and that McKinney committed both murders for monetary gain. Id. at 2–4.
Requesting leniency from the court, McKinney presented several mitigating circumstances, focusing heavily on a traumatic childhood in which he suffered constant verbal and physical abuse, food deprivation, sleep deprivation, and other forms of serious neglect. Id. at 4. In mitigation, McKinney also presented his diagnosis of post-traumatic stress disorder (“PTSD”), which, according to a clinical psychologist who testified, resulted from McKinney’s abusive childhood. Id.
At sentencing, the trial judge accepted McKinney’s PTSD diagnosis, but did not believe that McKinney’s PTSD was causally related to his criminal activity because the judge concluded that the PTSD did not impact McKinney during his commission of the crimes. McKinney v. Ryan at 809. The judge, therefore, determined that the mitigating circumstances McKinney presented did not outweigh the aggravating circumstances which called for the imposition of the death penalty, and the judge sentenced McKinney to death. McKinney v. Arizona at 2. The Arizona Supreme Court affirmed McKinney’s conviction and death sentence upon de novo review. Id.
After the Arizona Supreme Court affirmed his conviction and sentence, McKinney filed a petition for habeas corpus in the Arizona District Court. Id. at 2. The Arizona District Court denied McKinney’s petition, and the Ninth Circuit affirmed that decision. Id. The Ninth Circuit subsequently held a rehearing en banc, and reversed, holding that the Arizona Supreme Court’s failure to consider McKinney’s PTSD as a mitigating circumstance violated the United States Supreme Court’s ruling in Eddings v. Oklahoma, which provided that capital sentencers are required to consider any relevant mitigating evidence that a defendant produces. McKinney v. Ryan at 821. The Ninth Circuit explained that Arizona law at the time of McKinney’s sentencing violated Eddings because that law prohibited the trial court from considering “nonstatutory” mitigating evidence that had no causal connection to the underlying crime, and the trial court applied this law in determining that McKinney’s PTSD was not causally related to his criminal conduct. Id. at 802–03, 821.
The Ninth Circuit remanded the case to the Arizona District Court, directing that court to issue a writ of habeas corpus unless Arizona corrected the constitutional sentencing error or vacated the death sentence and imposed a more lenient sentence. McKinney v. Arizona at 2. Following the Ninth Circuit’s decision, the State moved for the Arizona Supreme Court to conduct another independent review of McKinney’s sentencing. Id. at 3. McKinney objected, arguing that Ring v. Arizona, a case which the U.S. Supreme Court decided in the years between McKinney’s original sentencing date and this motion for review, requires a jury to conduct his resentencing. Id.
The Arizona Supreme Court determined that it could appropriately review McKinney’s sentencing because McKinney’s case was final before the Supreme Court decided Ring. Id. at 3. The Arizona Supreme Court reexamined all of the mitigating evidence in McKinney’s case, regardless of whether that evidence was causally related to McKinney’s criminal activity. Id. The Arizona Supreme Court affirmed McKinney’s death sentence, concluding that McKinney’s PTSD bore minimal relation to McKinney’s behavior at the time of the murders, especially because the psychologist who evaluated McKinney testified at trial that because of his PTSD, McKinney would be more likely to withdraw from stressful situations. Id. at 4, 6.
On June 10, 2019, the United States Supreme Court granted certiorari to review McKinney’s death sentence. Proceedings and Orders, 18-1109.
THE FINALITY OF McKINNEY’S CASE, AND THE RETROACTIVE APPLICATION OF CURRENT CRIMINAL PROCEDURE LAW
Petitioner McKinney asserts that current constitutional, criminal procedure law should apply to his resentencing because when his case was not yet final when it appeared before the Arizona Supreme Court for that court’s second independent review of his death sentence. See Brief for Petitioner, James McKinney at 19. In support of this assertion, McKinney first points out that the Supremacy Clause of the U.S. Constitution requires courts to apply current law in all non-final cases. Id. McKinney explains that a conviction is final where the U.S. Supreme Court either affirms the defendant’s conviction based on the facts of the case or denies the defendant’s petition for certiorari. Id. at 22. McKinney admits that his case became final in 1996 when he failed to seek certiorari from the Supreme Court, but McKinney contends that not all cases remain final. Id. Here, McKinney asserts, his case did not remain final because, after the Ninth Circuit remanded his habeas petition, the Arizona Supreme Court granted independent review of his sentence, thus reopening his case for direct review and rendering it nonfinal. Id. To support his conclusion, McKinney relies on Jimenez v. Quarterman, where the Supreme Court concluded that an independent review used to correct an improper direct review in a defendant’s case made the defendant’s case non-final. Id. at 22–23. McKinney maintains that the Arizona Supreme Court’s review here was a similar “do-over” of the original direct review. Id. at 25. He supports this assertion by pointing to the similarities between the Arizona Supreme Court’s original direct review and its independent review conducted after the Ninth Circuit’s remand: in both cases, the Arizona Supreme Court (1) ordered the parties to brief the same question, and (2) conducted the same type of review by weighing mitigating and aggravating circumstances. Id. at 25–26. Additionally, McKinney emphasizes that sentencing is a fundamental component of a criminal case and that criminal cases are not final without the imposition of a sentence. Id. at 26.
McKinney argues that because the Arizona Supreme Court directly reviewed his sentence, properly weighing mitigating and aggravating circumstances for the first time, current criminal procedure law—and not criminal procedure law of 1996—must govern McKinney’s sentence. Id. at 28. McKinney explains that rules governing criminal trials retroactively apply to all nonfinal cases, and contends, therefore, that the Arizona Supreme Court erred when it did not apply current law to his resentencing. Id. at 29. He continues that under the Arizona law that applied at McKinney’s original sentencing, a sole judge acted as the sentencer in a capital case; however, the Supreme Court in Ring v. Arizona held that the Sixth Amendment requires a jury, not a judge, to weigh all aggravating and mitigating circumstances before sentencing an individual to death. Id. Thus, McKinney claims, the Arizona Supreme Court violated his constitutional right to jury sentencing because, after the Ninth Circuit identified the constitutional sentencing error, a jury never considered the mitigating evidence regarding McKinney’s PTSD. Id. at 31–32. McKinney contends that the Arizona Supreme Court, following its decision to reopen McKinney’s case, should have remanded the case to a trial court for a jury to resentence him. Id. at 33.
Respondent, the State of Arizona (the “State”), counters McKinney’s finality arguments by asserting that McKinney’s conviction was finalized in 1996 and never reopened. Brief for Respondent, State of Arizona at 17. Therefore, the State asserts, current constitutional law should not apply in McKinney’s case. Id. In support of this assertion, the State contends that the Arizona courts applied a state-specific appellate process to independently review McKinney’s sentence and that the Arizona Supreme Court did not consider this independent review part of its direct review process. Id. The State argues that the Arizona Supreme Court’s determination that independent review does not reopen a case cannot be undone by federal courts since the issue is strictly one of state law, and, thus, is left to the State to decide. Id. at 17–18. Additionally, the State maintains that a conditional habeas order, like the one the Ninth Circuit issued on remand, cannot reopen a state case and render the case nonfinal—instead, this order is simply an exercise of the federal court’s discretion to give state courts time to fix constitutional violations. Id. at 19. Further, the State claims that under Arizona law, independent review can arise as either a collateral or direct proceeding and that the constitutional issue here arises as a collateral proceeding that does not upset the case’s finality because it is separate from the original case. Id. at 21–22. The State also contradicts McKinney’s reliance on Jimenez by pointing out that the Supreme Court in Jimenez simply accepted the state court’s interpretation of what constituted a direct appeal. Id. at 28–29. Thus, the State claims, the Supreme Court here should defer to the Arizona Supreme Court’s determination that its review of McKinney’s death sentence was collateral. Id. at 29. Moreover, the State responds to McKinney’s argument that sentencing is a key component of direct review by pointing out that collateral review, which does not reopen a defendant’s case, often involves vacating or modifying a defendant’s sentence. Id. at 28.
The State further responds to McKinney’s argument that new criminal procedure rules should retroactively apply to his resentencing by again asserting that the Arizona Supreme Court never reopened McKinney’s case, and therefore, the bar on applying new law in cases that are final should be employed. Id. at 17. As part of its analysis, the State uses as an example federal courts’ review of federal convictions in habeas proceedings under 28 U.S.C. § 2255. Id. at 28. In those proceedings, and in similar habeas proceedings collaterally reviewing state convictions, the State emphasizes, federal courts are allowed to “vacate, set aside, or correct” sentences without triggering the application of new criminal procedure law. Id. Further, the State contends that the only error in McKinney’s case came from the Arizona Supreme Court itself, and that none of McKinney’s cited case law supports the conclusion that an appellate court correcting an error made on appeal must follow current criminal procedure law. Id. at 19 n.3. On remand, the State continues, the Arizona District Court had the option of instructing the Arizona state courts to resentence McKinney, and thereby apply new criminal procedure law, but federal court elected not to. Id. at 18. Consequently, the State contends, because current criminal procedure law did not apply, McKinney’s constitutional rights do not require a resentencing by a jury at the trial level. See id. at 29.
WHETHER RESENTENCING AND CORRECTING ERRORS AT THE TRIAL LEVEL IS NECESSARY
McKinney asserts that only a trial-level resentencing can correct the constitutional error that the state trial court and Arizona Supreme Court committed in not considering McKinney’s mitigation evidence. Brief for Petitioner at 33. McKinney concedes that the trial-level sentencing judge accepted his PTSD diagnosis, but, McKinney contends, that judge did not weigh McKinney’s PTSD in sentencing because he concluded that this diagnosis was not legally relevant. Id. at 35. McKinney notes that, on appeal, the Arizona Supreme Court violated the Constitution in the exact same manner. Id. When the Ninth Circuit identified this sentencing error, McKinney contends, the case should have been immediately remanded to the trial court for a trial-level sentencer to consider McKinney’s PTSD in the sentencing analysis. Id. at 35–36. McKinney claims that even under Arizona’s laws at the time of his original sentencing, trial judges possessed sentencing authority in capital cases, and the Arizona Supreme Court made independent reviews of sentences only as an appellate court, not as a trial court. Id. at 35. Furthermore, McKinney maintains that the Supreme Court’s precedent makes clear that Eddings errors, such as the one committed here, always require resentencing at the trial level because an appellate record does not present the full picture of all mitigating and aggravating circumstances. Id. at 39–41. Here, for example, McKinney points to certain “intangibles” that the Arizona Supreme Court could not assess from simply reading a sentencing transcript, including emotional testimony from McKinney’s sister and aunt testifying about McKinney’s abusive upbringing. Id. at 41. McKinney further argues that his case should have been remanded to the trial level because both the trial court and Arizona Supreme Court on direct review applied a causal nexus test, thus limiting the mitigating evidence presented in the trial record to evidence actually connected to the crime. Id. at 43. Applying this rule, McKinney maintains, infected the trial evidence by preventing testimony regarding McKinney’s PTSD that could have effectively secured McKinney life in prison instead of the death penalty. Id. at 44.
The State counters by positing that no Eddings error existed in this case in the first place, but, if one did exist, it would not require automatic resentencing at the trial level, since the error arose during appellate proceedings, not during the trial. See Brief for Respondent at 29–30. The State first argues that Supreme Court precedent suggests that appellate courts can correct Eddings errors, and that a bright-line rule that all Eddings violations require trial-level resentencing would be inconsistent with this precedent. Id. at 30–31. Moreover, the State asserts, in a case like McKinney’s, which was originally tried over two decades ago, a full trial-level resentencing based on old facts and poor memories could create another unreliable result. Id. at 31. Furthermore, the State claims that the Ninth Circuit’s conditional habeas relief was based on the Arizona Supreme Court’s error—not the trial court’s error—in applying the causal nexus test and not considering McKinney’s PTSD diagnosis in violation of McKinney’s constitutional rights. Id. at 31–32. The State emphasizes that habeas relief is meant “to place defendants in the position they would have been in absent” the constitutional error, and that position here is not the trial court, but the Arizona Supreme Court. Id. at 37. Moreover, because the error occurred at the appellate level, the State argues, correcting this error at the trial level is unnecessary, especially considering that the trial court allowed McKinney to fully present his mitigating evidence, including testimony regarding McKinney’s PTSD diagnosis. Id. at 32, 34. Additionally, in the alternative, the State requests that the Supreme Court correct the Ninth Circuit’s finding of a constitutional error because the Arizona Supreme Court applied the causal nexus test only when determining the weight of the mitigating evidence and not the admissibility of the evidence. Id. at 40–41. Afterall, the State contends, the Eighth Amendment leaves the sentencer free to assign whatever weight to mitigating evidence during sentencing, as long as the sentencer considers the mitigating evidence. Id. at 41.
FINALITY IN CAPITAL SENTENCING
The Roderick & Solange MacArthur Justice Center (“MacArthur Justice Center”), in support of McKinney, argues that the State’s approach to distinguishing final cases from nonfinal cases, for the purpose of applying constitutional law retroactively, would unnecessarily complicate and confuse the Supreme Court’s habeas and retroactivity jurisprudence. Brief of Amicus Curiae Roderick & Solange MacArthur Justice Center, in Support of Petitioner at 4. According to the MacArthur Justice Center, the Court’s current analysis of when a case is deemed final follows clearly defined lines: cases which are pending on direct review are not final and apply current procedural law; cases which are pending during a habeas analysis are indeed final and the legal rights available to the defendant are fixed at the time direct review ended. Id. at 6–7. What Arizona has done, indicates the MacArthur Justice Center, is complicate this analysis by classifying a case as simultaneously nonfinal for the purpose of resentencing and final for the application of procedural rules. Id. at 5. The MacArthur Justice Center emphasizes that the Supreme Court’s finality jurisprudence has moved away from issue-specific finality inquiries, instead underscoring the importance of consistency in finality determinations. Id. at 9–10. The State’s view of finality in this case, the MacArthur Justice Center asserts, would disrupt the Court’s appellate and postconviction system, leading to confusion and unreliability through the application of non-current law. Id. at 11.
In contrast, the Arizona Prosecuting Attorneys’ Advisory Council (“APAAC”), in support of the State, counters that actually McKinney’s approach to finality and retroactivity, not the State’s, would cause significant disruption for courts. See Brief of Amicus Curiae Arizona Prosecuting Attorneys’ Advisory Council, in Support of Respondent at 12. The APAAC argues that having courts apply to a defendant constitutional rules that did not exist at the time of the defendant’s conviction, undermines essential principles of finality in the criminal justice system. Id. at 3–4. The APAAC explains that allowing a constitutional error correction to reopen a case could significantly burden states, which will be forced to expend additional financial and judicial resources to conduct never-ending prosecutions and “do-over” trials. Id. at 12–13. Furthermore, asserts the APAAC, forcing states to reopen direct review after a case was already made final, upsets a state’s ability to impose punishments for a defendant’s violations of their state laws, an important state interest. Id. at 14. According to the APAAC, a decision in McKinney’s favor would also inhibit a state’s ability to protect its own citizens and to grant those citizens the peace of mind that comes with the finality of a conviction. Id. at 14–15.
DEFENDANTS’ CONSTITUTIONAL RIGHTS VS. IMPACT ON CRIME VICTIMS
The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) argues, on behalf of McKinney, that the State’s position that current constitutional protections should not apply to McKinney leaves defendants at their resentencing unprotected from conduct that the Supreme Court has deemed violative of the Constitution over the past few decades. Brief of Amicus Curiae The Lawyers’ Committee for Civil Rights Under Law, in Support of Petitioner at 5–6. The Lawyers’ Committee contends that applying current constitutional law in this case would not expand constitutional rights, but rather would allow the Supreme Court to recognize and protect rights which the Court has already deemed fundamental. See id.; see also id. at 27. Namely, explains the Lawyers’ Committee, if the Court rules to allow the application of outdated law in resentencing, it would significantly cut back on criminal defendants’ rights, particularly for defendants sentenced prior to pivotal cases defining their constitutional rights in areas such as racial discrimination and juror partiality. Id. at 6. For example, the Lawyers’ Committee suggests that capital defendants who were tried in states that did not have jury-based sentencing proceedings at the time of the defendant’s sentencing, could be, under the State’s view, subject to resentencing proceedings absent the now-recognized right to a jury determining the facts necessary to issue a death sentence. Id. at 19.
The Arizona Voice for Crime Victims Inc. (“AVCV”), in support of the State, counters by emphasizing the significant toll a decision in favor of McKinney would take on crime victims, who have a strong interest in once-final convictions and sentences remaining in place. See Brief of Amicus Curiae Arizona Voice for Crime Victims Inc., in Support of Respondent at 21. AVCV points out that both the Arizona Constitution and federal law provide crime victims with the right to be free of unreasonable delay in cases which impact them. Id. at 9–11. They explain that providing McKinney with a new resentencing in front of a jury would delay this case even further, reopen it to appeals and post-conviction relief, and create the possibility that other defendants, convicted years prior, would seek similar resentencing relief. Id. at 12. This possibility, AVCV continues, would re-burden the many victims of these once resolved crimes. Id. Indeed, argues AVCV, each time a victim reappears in court for another phase of litigation, that victim is retraumatized, causing significant harm to the healing and recovery essential for crime victims and their loved ones. Id. at 21.
- Jose Moreno, U.S. Supreme Court to Hear Chandler Death Penalty Case, Arizona Republic (June 10, 2019).
- Jordan S. Rubin, Divided on Death Penalty, Justices to Hear Capital Case (2), Bloomberg Law (June 10, 2019).
- Julian Paras, Supreme Court to Hear Appeal on Arizona Death Row Case, Cronkite News (June 11, 2019).