DP II

DP II

Checklist of Selected 6th/8th/14th Amendment Principles

This checklist contains selected principles relating to cruel/unusual punishment (8th Amendment applied to states through 14th), due process and equal protection (14th Amendment) which may be relevant to death penalty instructions. CAVEAT: There may be principles not included in this checklist which are also applicable depending upon the circumstances of the individual case.
- 1. Individualized Sentencing. It is “well established” that the 8th Amendment requires “individualized sentencing determinations in death penalty cases.” (Stringer v. Black (92) 503 US 222 [117 LEd2d 367 at 378-79; 112 SCt 1130]; Clemons v. Mississippi (90) 494 US 738, 752 [108 LEd2d 725; 110 SCt 1441]; Penry v. Lynaugh (89) 492 US 302, 317 [106 LEd2d 256; 109 SCt 2934]; 8th & 14th Amendments.)
- 2. Weighing Of Aggravating And Mitigating Factors. Individualized sentencing requires the jury to weigh “‘the mix of mitigating and aggravating factors.'” (Sochor v. Florida (92) 504 US 527 [119 LEd2d 326, at 336-37; 112 SCt 2114], quoting Clemons v. Mississippi (90) 494 US 738, 752 [108 LEd2d 725; 110 SCt 1441]; 8th & 14th Amendments.)
- 3. Determination Of Guilt Requires Heightened Reliability. The guilt determination in a capital case requires heightened reliability. (Beck v. Alabama (80) 447 US 625 [65 LEd2d 392, 403]; 8th and 14th Amendments.)
  - The fact that capital cases require heightened reliability as to both the guilt and sentencing determinations was reaffirmed by the court in Kyles v. Whitley (95) 514 US 419 [131 LEd2d 490, 498; 115 SCt 1555] in which the court quoted from Burger v. Kemp (87) 483 US 776, 785 [97 LEd2d 638; 107 SCt 3114]: “Our duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case.”
- 4. Sentencing Determination Must Be Reliable. The sentencing determination must be reliable. (Woodson v. North Carolina (76) 428 US 280, 305 [49 LEd2d 944; 96 SCt 2978]; Green v. Georgia (79) 442 US 95 [60 LEd2d 738; 99 SCt 2150]; Johnson v. Mississippi (88) 486 US 578, 587 [100 LEd2d 575]; Penry v. Lynaugh (89) 492 US 302, 328 [106 LEd2d 256; 109 SCt 2934]; 8th & 14th Amendments; see also, Section 3, above.)
- 5. Death Penalty Must Not Be Arbitrary. The death penalty may not be imposed in a discriminatory, random, arbitrary, or capricious manner. (Gregg v. Georgia (76) 428 US 153 [49 LEd2d 859; 96 SCt 2909]; Stringer v. Black (92) 503 US 222 [117 LEd2d 367 at 375-76; 112 SCt 1130]; Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756]; 1st, 8th & 14th Amendments.
  - It is true that Buchanan v. Angelone (98) 522 US 269 [139 LEd2d 702; 118 SCt 757] suggested that so long as the death qualification process rationally narrows those eligible for the death penalty, the sentencing jury may be given wide discretion. However, if the sentencing jury (or judge) is confused about the exercise of their sentencing discretion there may be an arbitrary deprivation of life in violation of due process. (See Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 972.)
  - In Singleton v. Norris (8th Cir. 1997) 108 F3d 872, 874, Judge Heaney wrote at some length about his opposition to the death penalty. The first paragraph of this section summarizes his views that, in practice, the death penalty is arbitrarily and capriciously imposed:
  - “Finally, although I am bound to uphold the law, I write separately to add my voice to those who oppose the death penalty as violative of the United States Constitution. My thirty years’ experience on this court have compelled me to conclude that the imposition of the death penalty is arbitrary and capricious. At every stage, I believe the decision of who shall live and who shall die for his crime turns less on the nature of the offense and the incorrigibility of the offender and more on inappropriate and indefensible considerations: the political and personal inclinations of prosecutors; the defendant’s wealth, race, and intellect; the race and economic status of the victim; the quality of the defendant’s counsel; and the resources allocated to defense lawyers. Put simply, this country’s unprincipled death penalty selection process is inconsistent with fundamental principles of due process.” (Id. at 874.)
- 6. Death Qualifiers Must Rationally Narrow Those Eligible For The Death Penalty. The death eligibility determination (i.e., the special circumstance determination in California) must rationally narrow the class of individuals who are death eligible for valid penological reason[s]. (Spaziano v. Florida (84) 468 US 447, 460, n 7 [82 LEd2d 340; 104 SCt 3154]; see also Tison v. Arizona (87) 481 U.S. 137, 149 [95 LEd2d 127; 107 SCt 1676].) This principle requires a State to construe death eligibility criteria to provide a “principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not.” (Lewis v. Jeffers (90) 497 US 764 [111 LEd2d 606, 619; 110 SCt 3092] (quoting Godfrey v. Georgia (80) 446 US 420, 433 [64 LEd2d 398; 100 SCt 1759]; 8th & 14th Amendments.)
  - Challenge To California Death Eligibility Scheme. In Tuilaepa v. California (94) 512 US 967 [129 LEd2d 750; 114 SCt 2630] the United States Supreme Court upheld one component of California’s death penalty scheme, but explicitly recognized that the constitutional adequacy of California’s death penalty eligibility provisions were not (and, implicitly, had not been) before the Supreme Court. (Id. at 975. [“Petitioners do not argue that the special circumstances found in their cases were insufficient, so we do not address that part of California’s scheme…”]; Id. at 981 (Stevens, J., concurring [emphasizing that the Supreme Court’s holding rested on the unchallenged, unaddressed assumption that the death penalty eligibility provisions were constitutional].) In dissent, Justice Blackmun emphasized that the Court had never given the California system “a clean bill of health,” and added:
  - [T]he Court’s opinion says nothing about the constitutional adequacy of California’s eligibility process, which subjects a defendant to the death penalty if he is convicted of first-degree murder and the jury finds the existence of one “special circumstance.” By creating nearly 20 such special circumstances, California creates an extraordinary large death pool. Because petitioners mount no challenge to these circumstances, the Court is not called on to determine that they collectively perform sufficient, meaningful narrowing.
  - California’s “narrowing” scheme is suspect because it is so broad that it actually achieves less narrowing than took place prior to Furman v. Georgia (72) 408 US 238 [33 LEd2d 346; 92 SCt 2726]. (See “The California Death Penalty Scheme: Requiem for Furman?,” Steven F. Shatz and Nina Rivkind, 72 N.Y.U. Law Rev. 1283 (1997).) Both on its face and in practice, the California scheme is the broadest in the nation. Hence, the constitutionality of the California scheme should be challenged at trial and on appeal. [See See Motion Bank # M-3007 for a sample trial motion. See Brief Bank # B-808 for briefing on this issue. Included with both the motion and the brief are declarations from Professor Shatz as to the statistical overbreadth of the California special circumstances (Exhibit A).
  - Even though the failure-to-narrow claim was apparently rejected in Karis v. Calderon (9th Cir. 2002) 283 F3d 1117, 1141 and Mayfield v. Woodford (9th Cir. 2001) 270 F3d 915, 924, the legal and factual bases for this conclusion are questionable and counsel should continue to raise the claim. Neither Karis nor Mayfield considered the claim in light of Professor [Steve] Shatz’s unchallenged empirical evidence and conclusions which support the claim. Nor did the district courts in those cases consider such empirical evidence. In Mayfield, the petitioner failed to provide “any specific argument or analysis in support of his claim beyond bare allegations of unconstitutionality.” (Mayfield v. Calderon UNPUB (D. Cal., 1997) 1997 U.S. Dist. LEXIS 19846, *68.) In Karis, the petitioner did present interim results from the Shatz study but he was not permitted to expand the record to include the complete results and was denied an evidentiary hearing on the issue. (Karis v. Calderon, 283 F3d 1117, 1127 [Citation.] Just as the Supreme Court’s approval of the Georgia death penalty scheme in Gregg, did not prevent the Court’s later reconsideration of the scheme in light of evidence as to its effect (see Godfrey v. Georgia, 446 U.S. 420), so Mayfield and Karis do not bar consideration of the Shatz claim.
- 7. Instruction On Mitigation. The jury must be allowed to give full force and effect to the mitigating evidence and must have a “vehicle for expressing a `reasoned moral response’ to all of the evidence relevant to the defendant’s culpability. [Citation.]” (Smith v. Texas (2004) 543 US 37 [160 LEd2d 303, 311-12; 125 SCt 400, 406] .) The sentencer must consider “as a mitigating factor, any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio (78) 438 US 586 [57 LEd2d 973; 98 SCt 2954, 990]; Weeks v. Angelone (2000) 528 US 225 [145 LEd2d 727; 120 SCt 727] [“the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence …”]; see also Buchanan v. Angelone (98) 522 US 269, 276 [139 LEd2d 702; 118 SCt 757] [same].) This includes the defendant’s mental impairment and background. (Penry v. Johnson (2001) 532 US 782 [150 LEd2d 9; 121 SCt 1910, 1923-24] [death sentence unlawful because jury had inadequate opportunity to consider mitigating evidence of defendant’s retardation and childhood abuse]; Eddings v. Oklahoma (82) 455 US 104 [71 LEd2d 1; 102 SCt 869]; 8th & 14th Amendments.)
  - “It follows as night the day that although the jury determines the appropriate weight to be given to the mitigating evidence, the jury ‘may not give it no weight by excluding such evidence from their considerations.’ [Citation to Eddings v. Oklahoma (82) 455 US 104, 115 71 LEd2d 1; 102 SCt 869].] Where the jury misunderstands its obligation to consider relevant mitigating evidence, “[t]he risk created by this legal derailment [is] that [the jury] would impose the death penalty ‘in spite of factors which…[might] call for a less severe penalty.’ [Citation to Lockett v. Ohio (78) 438 US 586 at 605 [57 LEd2d 973; 98 SCt 2954]]” (McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 838.) “The Supreme Court has identified this risk as one ‘unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’ [Citation.]” (Ibid.)
  - RESEARCH NOTES: See Diana J. English Ph.D., Cathy Spatz Widom, Ph.D., Carol Brandford, MSW, Childhood Victimization and Delinquency, Adult Criminality and Violent Criminal Behavior: A Replication and Extension (February 1, 2002) [a final report presented to the National Institute of Justice under Grant No. 97-IJ-CX-0017. Electronic copy available at www.ncjrs.org; search the abstract database]. This work is an augmentation of previous studies, which identified childhood victimization as an important risk factor in the development of criminal behavior.
- 8. Sympathy Must Be Considered. The sentencer must be allowed to consider factually based sympathy. (People v. Easley (83) 34 C3d 858, 875-78 [196 CR 309]; 8th & 14th Amendments.)
- 9. Non-Statutory Aggravation May Not Be Considered. The sentencer may not consider non-statutory aggravation. (People v. Williams (88) 45 C3d 1268, 1324 [248 CR 834]; 8th & 14th Amendments.)
- 10. Death Penalty Must Further Acceptable Goals Of Punishment. The state may not make application of the death penalty depend upon a particular characteristic of the offense or offender if selection of such a characteristic makes “no measurable contribution to acceptable goals of punishment.” (Coker v. Georgia (77) 433 U.S. 584, 592 [53 LEd2d 982; 97 SCt 2861] (plurality); see also Beam v. Paskett (9th Cir. 1992) 966 F2d 1563, AMENDED, VACATED, REMANDED; Arave v. Beam (93) 507 US 1027 [123 LEd2d 464; 113 SCt 1837]; 8th & 14th Amendments.)
- 11. Weighing Invalid Factors Violate Constitution. Weighing of invalid aggravating circumstances violates the 8th and 14th Amendments. (Espinosa v. Florida (92) 505 US 1079 [120 LEd2d 854; 112 SCt 2926]; Clemons v. Mississippi (90) 494 US 738, 752 [108 LEd2d 725; 110 SCt 1441].)
- 12. Vague Aggravating Factor Is Invalid. An aggravating factor is invalid under the 8th and 14th Amendments if its description is so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor. (Stringer v. Black (92) 503 US 222, 228 [117 LEd2d 367, 377; 112 SCt 1130]; Shell v. Mississippi (90) 498 US 1 [112 LEd2d 1; 111 SCt 313]; Maynard v. Cartwright (88) 486 US 356 [100 LEd2d 372; 108 SCt 1853]; Godfrey v. Georgia (80) 446 US 420 [64 LEd2d 398; 100 SCt 1759].)
- 13. Close Appellate Scrutiny Of Invalid Factors. The 8th and 14th Amendments requires “close appellate scrutiny of the import and effect of invalid aggravating factors ….” (Stringer v. Black (92) 503 US 222, 230 [117 LEd2d 367, 378; 112 SCt 1130].)
- 14. Invalid Factor Promotes Randomness. “Employing an invalid aggravating factor in the weighing process ‘creates the possibility…of randomness,’ [citation] by placing a ‘thumb [on] death’s side of the scale’ [citation] thus ‘creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty’ [citation].” (Sochor v. Florida (92) 504 US 527 [119 LEd2d 326, 336; 112 SCt 2114]; 8th & 14th Amendments.)
- 15. Reasoned Moral Response To Background, Character, And Crime. “‘[T]he sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant’s background, character, and crime.'” (Penry v. Lynaugh (89) 492 US 302, 319, 328 [106 LEd2d 256; 109 SCt 2934]; 8th & 14th Amendments.)
- 16. Relevant Mitigation Must Be Considered Notwithstanding Traditional Rules Of Evidence. Traditional rules of admissibility for purposes of guilt trials should not be used to exclude evidence relevant to mitigation at the penalty trial. (See Green v. Georgia (79) 442 US 95, 97 [60 LEd2d 738; 99 SCt 2150]; see also, People v. Harris (84) 36 C3d 36, 68-70 [201 CR 782]; Gregg v. Georgia (76) 428 US 153, 204 [49 LEd2d 859; 96 SCt 2909]; State v. Davis (84) 477 A2d 308, 314 [96 MJ 611]; but see People v. Stanley (95) 10 C4th 764, 838-40 [42 CR2d 543] [only “reliable” evidence may be admitted at penalty trial].)
- 17. After Death Eligibility Sentencer May Have “Unbridled Discretion.” “[I]n the final analysis ‘the constitutional prohibition on arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing “scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute.”‘ [Citations.]” (People v. Bolin (98) 18 C4th 297, 342 [75 CR2d 412]; see also Buchanan v. Angelone (98) 522 US 269, 276-77 [139 LEd2d 702; 118 SCt 757].)
- 18. Counsel’s Duty To Seek Life Even Against Defendant’s Wishes. Although the defendant instructed counsel to offer no evidence in mitigation and asked the court for a death sentence, petitioner’s “wishes alone cannot support or justify his death penalty; his sentence must be in accordance with constitutionally-sufficient standards of state law.” (Langford v. Day (9th Cir. 1997) 110 F3d 1380, 1391; see also Douglas v. Woodford (9th Cir. 2003) 316 F3d 1079, 1089-90 [counsel must conduct reasonable investigation before acceding to defendant’s desire to forego presentation of mitigating evidence]; Silva v. Woodford (9th Cir. 2002) 279 F3d 825, 838-41 [defendant’s instruction not to call particular witnesses at penalty phase did not excuse counsel’s failure to investigate and present potentially compelling evidence]; Johnson v. Singletary (11th Cir. 1998) 162 F3d 630, 641 [“It is well-established in our circuit that counsel has a continuing responsibility to represent and advise a non-cooperative client, particularly when counsel knows or has reason to know that his client is mentally unstable.”].)
- 19. Death Penalty: Duty Of Counsel To Investigate Mental Impairment As Mitigation. “To perform effectively in the penalty phase of a capital case, counsel must conduct sufficient investigation and engage in sufficient preparation to be able to ‘present [] and explain [] the significance of all the available [mitigating] evidence.'” (Mayfield v. Woodword (9th Cir. 2001) 270 F3d 915, 927 [quoting Williams v. Taylor (2000) 529 US 362, 393, 399 [146 LEd2d 389; 120 SCt 1495]; see also Rompilla v. Beard (2005) 545 US 374 [162 LEd2d 360; 125 SCt 2456, 2467] [“It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the trial courthouse, open for the asking”].)
  - Counsel may render ineffective assistance if he or she is on notice that the defendant may be mentally impaired, yet fails to investigate his client’s mental condition as a mitigating factor in a penalty phase hearing. (Hendricks v. Calderon (9th Cir. 1995) 70 F3d 1032, 1043; accord Smith v. Stewart (9th Cir. 2001) 241 F3d 1191, 1199; see also Williams v. Taylor, 529 US at 362 [counsel’s failure to investigate and present evidence of a defendant’s mental defect and social history constitutes deficient performance under Strickland].)
  - Counsel also has an affirmative duty to provide mental health experts with information needed to develop an accurate profile of the defendant’s mental health. (Wallace v. Stewart (9th Cir. 1999) 184 F3d 1112, 1116 [counsel has professional responsibility to investigate and bring to the attention of mental health experts who are examining his client facts that the experts do not request]; Clabourne v. Lewis (9th Cir. 1995) 64 F3d 1373, 1385.) Providing the appropriate experts with pertinent information about the defendant is key to developing an effective penalty phase presentation. (Bean v. Calderon (9th Cir. 1998) 163 F3d 1073, 1079-80; see also Caro v. Woodford (9th Cir. 2002) 280 F3d 1247 [brain-damaged defendant’s death sentence properly vacated; counsel ineffective for failing to either investigate neurological effects of known exposure to neurotoxins or to provide strategic or tactical justification for that failure]; Turner v. Calderon (9th Cir. 2002) 281 F3d 851 [counsel ineffective for failure to investigate and present evidence of long-term drug use and abusive childhood which could have altered result of penalty phase]; Ainsworth v. Woodford (9th Cir. 2001) 268 F3d 868, 875 [counsel deficient for failing to present mitigating evidence of defendant’s troubled childhood and substance abuse].)
  - “There can be no strategic or tactical reason for counsel to fail to request that a mental health expert be appointed to assist the defense when mental health issues could be a significant factor at either the guilt or penalty phase, because such an expert is necessary to effectively develop and present such evidence, as well as to assist counsel and his client in deciding whether such evidence should be presented at trial.” (Holloway v. Horn (E.D. Pa. 2001) 161 FSupp2d 452 [failure to request appointment of mental health expert to assist defense during penalty phase of capital trial constituted ineffective assistance of counsel and deprived defendant of his right to due process].) When counsel knew or had reason to know of a mental defect or illness affecting their client in a possible death penalty case, counsel could and should have: (1) promptly sought the appointment of co-counsel [to aid in the preparation of a mitigation package]; (2) presented a mitigation package to the prosecutor before a death penalty notice was filed; (3) promptly investigated relevant mental health issues; (4) sought a timely appointment of investigators; (5) sought a timely appointment of qualified mental health experts; and (6) adequately prepared for the penalty phase by having relevant mental health issues fully assessed and by retaining, if necessary, qualified mental health experts to testify accordingly.” (In re Brett (WA 2001) 16 P3d 601, 608.)
- 20. Death Eligibility Determination Requires Full Due Process And Trial By Jury Protections. The United States Supreme Court has held that there is no right to jury determination of sentence in a capital trial. (See Spaziano v. Florida (84) 468 US 447 [82 LEd2d 340; 104 SCt 3154]; Walton v. Arizona (90) 497 US 639 [111 LEd2d 511; 110 SCt 3047].)
  - However, Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] and Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215] make it clear that full constitutional protections under the 5th, 6th and 14th Amendments apply to any factual determination upon which death eligibility is predicated. Walton, Spaziano and Hildwin v. Florida (89) 490 US 638 [104 LEd2d 728; 109 SCt 2055] involved factors related to a “choice between a greater and lesser penalty…” (See Jones, 119 SCt at 1228.) Under Jones and Apprendi, the determination of death eligibility must be made by the jury because it is “a process of raising the ceiling of the sentencing range available.” (Jones, 119 SCt at 1228; see also Apprendi, 120 SCt at 2363.)
- 21. Whether Apprendi Requires Jury Trial At Capital Sentencing Determination. A series of three capital cases rejected the contention that capital sentencing must be a jury task. (Spaziano v. Florida (84) 468 US 447 [82 LEd2d 340; 104 SCt 3154], Hildwin v. Florida (89) 490 US 638 [104 LEd2d 728; 109 SCt 2055], and Walton v. Arizona (90) 497 US 639 [111 LEd2d 511; 110 SCt 3047].) However, Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] requires that death eligibility special circumstances be determined by the jury. [See Brief Bank # B-786 and # B-852 for additional briefing on Jones and Apprendi.]
  - Apprendi and Ring: No Application To Penalty Phase Procedures. In Apprendi, the United States Supreme Court found a constitutional requirement that any fact, other than a prior conviction, which increases the maximum penalty for a crime must be formally charged, submitted to the fact finder, treated as a criminal element, and proved beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 US 466, 476-490.) People v. Martinez (2003) 31 C4th 673 held that nothing in Apprendi requires specific findings regarding the truth of the aggravating circumstances, their relative weight, or the appropriateness of a death penalty. (Martinez, 31 C4th at 700-01; see also Ring v. Arizona (2002) 536 US 584, 602 [requiring jury finding beyond reasonable doubt as to facts essential to punishment]; People v. Anderson (2001) 25 C4th 543, 589-590, fn. 14.)
- 22. Death Is Different. “[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long….Because of this qualitative difference, there is a corresponding difference in the need for reliability….” (Woodson v. North Carolina (1976) 428 US 280, 305 [49 LEd2d 944; 96 SCt 2978]; see also Lankford v. Idaho (1991) 500 US 110, 125-26 [114 LEd2d 173; 111 SCt 1723]; Johnson v. Mississippi (1988) 486 US 578, 584 [100 LEd2d 575; 108 SCt 1981]; Mills v. Maryland (1988) 486 US 367, 377 [100 LEd2d 384; 108 SCt 1860]; Caldwell v. Mississippi (1985) 472 US 320, 329-330 [; 86 LEd2d 231105 SCt 2633]; California v. Ramos (1983) 463 US 992, 998-999 fn 9 [77 LEd2d 1171]; 103 SCt 3446.)
  - “[D]eath is a sentence which differs from all other penalties in kind rather than degree. Death is the most final, and most severe, of punishments….Sentencing procedures for capital crimes, far more so than for non-capital crimes, must be created and enforced in a way that ensures ‘that the punishment will [not] be inflicted in an arbitrary and capricious manner.’…'[A]ny exclusion of the compassionate or mitigating factors stemming from the diverse frailties of humankind that are relevant to the sentencer’s decision would fail to treat all persons as uniquely individual human beings.'” (Flores v. Johnson (5th Cir. 2000) 210 F3d 456, 459-60, concurring opinion of Garza, J.)
  - As a result, the 8th Amendment requires a “greater degree of accuracy” and reliability. (Gilmore v. Taylor (1993) 508 US 333, 342 [124 LEd2d 306; 113 SCt 2112]; see also Gore v. State (FL 1998) 719 So2d 1197, 1202 [in death case “both the prosecutors and courts are charged with an extra obligation to ensure that the trial is fundamentally fair in all respects”].) “[T]he severity of the death sentence mandates heightened scrutiny in the review of any colorable claim or error.” (Edelbacher v. Calderon (9th Cir. 1998) 160 F3d 582, 585.)
  - When the state seeks death, courts must ensure that every safeguard designed to guarantee “fairness and accuracy” in the “process requisite to the taking of a human life” is painstakingly observed. (Ford v. Wainright (1986) 477 US 399, 414 [91 LEd2d 335; 106 SCt 2595]; see also Gardner v. Florida (1977) 430 US 349 [51 LEd2d 393; 97 SCt 1197].)
  - RESEARCH NOTES: Deborah W. Denno, Comment, Review Essay: “Death is Different” and Other Twists of Fate: The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment, by Welsh W. White, 83 J. CRIM. L. & CRIMINOLOGY 437 (1992) [discussing Barefoot as an example of Supreme Court’s twisting of original “death is different” doctrine].
  - Erica Beecher-Monas and Edgar Garcia-Rill, The Law and the Brain: Judging Scientific Evidence of Intent, 1 J. App. Prac. & Process 243 (1999) [“It is doubtful that testimony about future dangerousness could withstand Daubert analysis”].
  - Michael H. Gottesman, From Barefoot to Daubert to Joiner: Triple Play Or Double Error, 40 Ariz. L. Rev. 753, 755 (1998) [Daubert cannot be squared with Barefoot”]; cf. Nenno v. Texas (TX 1998) 970 SW2d 549, 561 [a Daubert analysis applies with “less rigor” to the “social sciences or fields that are based primarily upon experience and training as opposed to the scientific method].
  - See also Capital Punishment Handbook [4.5.6a. Diminishing Jury Sense Of Responsibility: General Principles And Authorities] (9th Circuit, 2000).
- 23. Execution Of Mentally Retarded Person Violates The 8th Amendment. Atkins v. Georgia (2002) 536 US 304 [153 LEd2d 335, 349-50; 122 SCt 2242, 2251-52] held that the 8th Amendment precludes execution of a mentally retarded person for two reasons. First, there is a serious question whether either justification underpinning the death penalty — retribution and deterrence of capital crimes — applies to mentally retarded offenders. Second, mentally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse.
- 23.1. Determination Of Mental Retardation (PC 1376): Testing Of Defendant By Prosecution Experts. The defendant’s Fifth and Sixth Amendment rights are not violated by the procedures for determining his mental retardation, including examination by court-appointed or prosecution experts. However, the trial court must prohibit any tests it concludes are not reasonably related to determining mental retardation. (See Centeno v. Superior Court (2004) 117 CA4th 30.)
  - 23.2 Atkins. See also Campbell v. Superior Court (2008) 159 CA4th 635 [Court of Appeal disapproves of the overly technical approach taken by the trial judge, which ruled that the defendant had failed to meet his burden of proof because only one standardized test for adaptive deficits was considered by the four defense experts who opined the defendant was mentally retarded].
  - 23.3 PC 1376 Does Not Require Proof That Defendant Was Retarded At The Time Of The Crime. Campbell v. Superior Court (2008) 159 CA4th 635 [petition for writ of mandate seeking to reopen Atkins hearing is granted]: Contrary to the hearing judge’s formulation, while adaptive deficits must manifest before age 18, PC 1376 does not require a defendant to prove that he was retarded at the time of the commission of the offense.
- 24. Prosecutor Misconduct Which Forecloses Juror Consideration Of Mitigation. “When a prosecutor’s actions are so egregious that they effectively ‘foreclose the jury’s consideration of …mitigating evidence,’ the jury is unable to make a fair, individualized determination as required by the Eighth Amendment.” (See DePew v. Anderson (6th Cir. 2002) 311 F3d 742.)
- 25. Public Favor Of Capital Punishment Must Not Impair Defendant’s Constitutional Right To A Fair Trial. “The public’s, or the voter’s, feelings in favor of capital punishment for brutal crimes are a well-known part of our political tradition, but these feelings cannot rise above or displace constitutional provisions insuring a fair trial.” (See DePew v. Anderson (6th Cir. 2002) 311 F3d 742 [reviewing court improperly considered public’s interest in effective justice system in concluding error was harmless].)
- 26. Death Sentence Must Be Based On Accurate Information. The death determination must be made upon reliable and accurate information. (See Gardner v. Florida (1977) 430 US 349 [51 LEd2d 393; 97 SCt 1197]; cf. People v. Eckley (2004) 123 CA4th 1072 [due process is violated when a judge’s sentencing decision is based on incorrect information]; see also FORECITE PG VII(C)(47).)
- 27. Applicability of International Law To Imposition Of Death Penalty In The United States On Foreign Nationals. See Sanchez-Llamas v. Oregon (2006) 548 US 331 [165 LEd2d 557; 126 SCt 2669] [suppression of evidence not required for violation of Article 36 of Vienna Convention On Consular Rights; also state’s procedural default rules apply].
- 27. No Execution Of Juveniles Under 18 Years Old. (See Roper v. Simmons (2005) 543 US 551 [161 LEd2d 1; 125 SCt 1183]; c.f., FORECITE F 8.85(i) Inst 1-4.)