(The Return of) Ignatz, by Sam Heldman

Thursday, October 24, 2002

Supreme Court Next up for discussion and prediction is Sattazahn v. Pennsylvania, a death penalty case. As you probably know, death cases are tried in two phases, by and large: a guilt phase, and then (if the defendant is found guilty) a sentencing phase. Sattazahn was convicted of murder, and the jury could not reach a verdict in the sentencing phase. Therefore, under PA law, the trial judge was required to sentence him to life. Sattazahn successfully appealed his conviction, and won a retrial. He was convicted again, and this time the jury agreed on the death penalty. His argument is that, under the Double Jeopardy and/or Due Process clauses, he shouldn't be subject to the death penalty on retrial. The Supreme Court of Penn. disagreed (opinion and dissent (both pdf files)).

The legal landscape is that the Supreme Court decided some years ago, in Bullington v. MO, that if the jury in the sentencing phase at the first trial decides against death, then there can be no death penalty on a subsequent retrial (when, as here, the first conviction is overturned on appeal). But this case is different, because there was no actual jury verdict of "we agree on a life sentence" the first time around; there was a failure of the jury to reach a verdict, which led to a life sentence under state law. The question is whether this makes a difference. Chief Justice Rehnquist, by the way, was among the dissenters in Bullington, so he quite likely won't want to expand Bullington here.

The government's argument, essentially, is that "jury's failure to decide" is very different from "jury's decision against death penalty." For instance, when a jury fails to reach a verdict on guilt, we allow a retrial – rather than saying "the prosecution had its one chance, and it failed to convict, so the defendant goes free." The State's argument is that the failure-to-reach-a-verdict-on-sentencing is analogous to failure-to-reach-a-verdict-on-guilt in that sense, so a retrial on sentencing is constitutionally permissible.

Sattazahn's argument is (to oversimplify greatly; see his brief ( big pdf here through Findlaw)) that this isn't like a "hung jury" on the question of guilt, because this jury deadlock (under PA law) required and resulted in a judicial decision not to impose the death penalty. In other words, this deadlock led to a result, rather than calling for a do-over. And this, he says, brings the case within the rule of Bullington under the procedures set forth in Pennsylvania law. He says that Pennsylvania could write a law that says a jury deadlock in the sentencing phase will leave the option of death "on the table" for another sentencing phase; but, he says, Pennsylvania hasn't done that, and so he was entitled to rest comfortable with the fact that he wouldn't be put to death.

You may call it an exercise in projection of my own thinking rather than prediction, if you want, but I think that the Court will REVERSE in this case. (After all, they did grant certiorari, and without any showing that there was a split among the lower courts on the topic; this means that at least four Justices thought the defendant's argument was good enough to spend the Court's resources deciding, and that those four weren't sure of their inability to get a fifth vote on the merits.). All it takes is the four kind-of-liberals plus either Justice O'Connor or Justice Kennedy. And Justice O'Connor wrote the opinion in Arizona v. Rumsey that expanded a little bit on Bullington, so she might well provide the fifth vote for a little further expansion here too.

posted by sam 7:10 AM 0 comments


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