FACTOR (k)

03/08/2007

The Supreme Court of United States in Robert Aayers v/s. Fernando Belmontes is concerned about the jury instruction in the sentencing phase. The short issue is: in 1982, the respondent Belmontes was tried and the jury returned a verdict of murder in the first degree then determined he should be sentenced to death (the evidence at trial showed that Belmontes encountered Stecy McConnell who was struck 19-20 times and killed by him. The trial court directed the jury with factor k instructions. The factor k was a general and catch-all factor. Under Factor K the jury was instructed to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime".

What steps did Belmontes take before he approached Supreme Court?

Belmontes exhausted (1). direct review (2). state collateral proceedings (3). Federal Habeas Proceedings. Belmontes first exhausted state remedies and then filed amended Federal Habeas Petition.

Belmontes approached the Supreme Court of California where his sentence was affirmed. The United States Dist. Court of the Eastern District denied relief. The Court of Appeals for the ninth circuit reversed relevant part. Over dissent the rehearing was denied en banc.

Mitigating evidence lead by Belmontes:

In a sentencing phase the respondent introduced mitigating evidence to show inter alia that he would make positive contributions in a structured prison environment. He testified that during previous term under California Youth Authority - CYA he behaved in a constructive way. He embraced Christianity, formed good relationship with his Christian Sponsors, pursued religious life and was baptized. Although his religious commitment lapsed, he testified that he would once again returned to religion. Belmontes got chaplain and assistant chaplain to testify in his favor.

After presenting mitigation evidence, the closing arguments were made discussing how jury should consider the mitigating evidence. The trial judge included in his instructions the disputed factor (k).

Analysing factor (k) in Belmontes in light of Payton and Boyde

The Aayers V/s. Belmontes has been considered in light of Brown V/s. Payton and Boyde V/s. California.

In Boyde (concerned with pre-crime back-ground), a constitutional challenge was made that factor (k) precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant's background and character. Rejecting this claim the US Supreme Court explained that "proper inquiry, is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence?"

In Boyde's the defendant had an opportunity through factor (k)
to argue that his background and character "extenuated" or "excused" the seriousness of the crime. The court therefore rejected the plea challenging factor (k) by saying that it saw no reasons to believe that reasonable jurors would resist the view long held by society that in appropriate case such evidence would counsel punishment of a sentence less then death.

Analyzing Boyde, the court further said that exclusion of the mitigating evidence would require the jury to believe (1). that the court's instruction transformed all the favorable testimony into a virtual charade (2). disregard another instruction with required jury to consider all the evidence which has been received during any part of the trial of case.

This is what the court said it could not believe. Thus, factor (k) challenge was turned down by the court.

Similarly in Payton (concerned with postcrime rehabilitation), the prosecutor's argument saying factor (k) precluded consideration of postcrime rehabilitation evidence was turned down by the court. Court remarked that accepting the prosecutor's reading would have required a "surprising conclusion that remorse could never serve to lessen or excuse a crime". In Payton, the court observed that (1). defense had presented extensive evidence and argument regarding postcrime religious conversion and other good behavior. (2). Jury was instructed to consider all evidence admitted "during any part of the trial in the case, except as you may be hereafter instructed". (3). prosecution devoted substantial attention to discounting (postcrime evidence's) importance as compared to the aggravating factors. Based on these premise, the Supreme Court explained that the state court in Payton could reasonably have concluded that, as in Boyde, there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had heard.

Dissenting with the opinion of the Court of Appeals, the Supreme Court concluded that "the court of appeals erred by adopting a narrow and an unrealistic interpretation of Factor (k). The court explained that Factor (k) "did not limit the jury's consideration on any other circumstances of the crime which extenuates the gravity of crime rather the jury was directed to consider any other circumstance that might excuse the crime. Precrime background & character (Payton) and Postcrime rehabilitation Boyde therefore may extenuate the gravity of the crime.

In Belmontes, the court said "in any event, since the respondent sought to extrapolate future behavior from precrime conduct", his mitigation theory was more analogous to the good-character evidence examined in Boyde and held to fall within factor (k)'s purview. The defense adduced evidence of troubled upbringing and the respondent's testimony saying he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that". The Supreme court recognized this assertion, forward-looking evidence of defense, testimony of two prison chaplains, respondent's church sponsors and considering these factors, the court said "the jurors could have disregarded respondent's future potential only if they drew the unlikely inference that 'the court's instructions transformed all of his favorable testimony into a virtual charade', it is impossible that the jurors were engaging in an exercise in futility when respondent present his mitigating evidence in open court".

The prosecutor in Belmontes suggested that respondent's religious evidence was weak. The Prosecutor argued "You know, first of all, it is no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky". The court explaining prosecutor's argument suggested that "he was discussing the persuasiveness of the evidence, not the jury's ability to consider it." The prosecutor explained the evidence of "religious awakening" to be weighed across "value to the community later". He said "I think that value to the community is something you have to weigh in. There's something to that..Religion..should be no ground for either giving or withholding life..Let us turn it around and look at the other side of the coin. Suppose someone said he did not belong to a church and did not talk to a minister. Would that man deserve to die merely because of that?.. I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right".

Countering the prosecutor's argument the Supreme Court explained that "respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, the respondent wanted to use his religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening."

The Supreme Court in Belmontes also recognized the defense counsel's closing argument "I am not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here.. people who came in here [and] told you about [respondent] provided the jury with "a game plan" for what the respondent could do with his life". Analysing this statement the court explained "his remarks merely distinguished between a legal excuse and an extenuating circumstance..which extenuates the gravity of the crime even though it is not a legal excuse for the crime..This would have left the jury believing it could and should contemplate respondent's potential".

Considering "other instructions" the Supreme Court found "it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation." The judge said the Supreme Court "told the jury" to "consider all the evidence which has been received during any part of the trial of this case, except as you may be hereinafter instructed.."

The court instructed the jury to consider all the evidence. If the aggravating circumstances outweigh the mitigating circumstances, sentence of death shall be imposed. However, if the mitigating circumstances outweigh the aggravating circumstances, sentence of confinement in the state prison for life without the possibility of parole be imposed. The judge gave supplemental instructions where listed aggravating circumstances and none other were to be considered for deciding that the death penalty would be an appropriate punishment. However, the mitigating circumstances read out were mere examples. Any one of them stand-alone may support that "death is not the appropriate punishment in this case" (thereby making it clear that jury was to take a broad view of mitigating evidence).

The Supreme Court in Belmontes therefore recognized that evidence and arguments "eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond reasonable doubt." The court found it implausible that the jury supposed the past deeds pointing to a constructive future could not "extenuate the gravity of crime" as required by factor (k) much less that such evidence could not be considered at all." The Supreme Court found factor (k) instructions giving support to the defense's central evidence rather then encouraging the jury to ignore it.

While interpreting the jury question, the Supreme Court pointed the flaws of the Court of Appeals' and supported the observations of California Supreme Court. The Court of appeals viewed that Juror Hern's questions regarding only listed mitigating factor "were on the table" (only those factors as listed and none other were to be considered) needed a clarification instructions which were not given by the court. Thus, concluding that the factor (k) instructions precluded the forward looking evidence. The Supreme Court pointed out that this was a only a way to interpret her (Juror Hern's) questions (and not necessarily a correct one). The Juror questions simply clarified the California's overall balancing process "which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating".

Considering the above disposition, the matter was remanded back.

(For Contrary view, please see "Factor (k) - contrary view")