Death Penalty

Bosse v. Oklahoma - Post-Decision SCOTUScast

SCOTUScast 11-16-16 featuring Erin Sheley
Erin Sheley November 16, 2016

On October 11, 2016, the Supreme Court decided Bosse v. Oklahoma. In 1987, the U.S. Supreme Court held in Booth v. Maryland that the Eighth Amendment prohibits a sentencing jury in a death penalty case from considering victim impact evidence that does not directly relate to the circumstances of the crime. Four years later in Payne v. Tennessee, the Supreme Court clarified that the ban only applied to certain kinds of victim impact testimony.

Shaun Michael Bosse was convicted of three counts of first-degree murder. The prosecution sought the death penalty and, over Bosse’s objection, asked three of the victims’ family members to recommend a sentence to the jury. All three recommended the death penalty, and the jury sentenced Bosse to death. Bosse appealed, arguing that the testimony violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed, holding that Payne had implicitly overruled Booth’s ban as it related to characterizations of the defendant and opinions about the sentence.

By a vote of 8-0, the U.S. Supreme Court vacated the decision of the Oklahoma Court of Criminal Appeals and remanded the case. The Supreme Court held in a per curiam opinion that the Oklahoma Court of Criminal Appeals erred in concluding that Payne had implicitly overruled Booth in its entirety. Supreme Court decisions remain binding precedent until reconsidered, the Court explained--even when subsequent cases have raised doubts about their continuing vitality. Justice Thomas filed a concurring opinion in which Justice Alito joined.

To discuss the case, we have Erin Sheley, who is Assistant Professor, University of Calgary Faculty of Law.

Lynch v. Arizona - Post-Decision SCOTUScast

SCOTUScast 7-14-16 featuring Marah Stith McLeod
Marah Stith McLeod July 14, 2016

On May 31, 2016, the Supreme Court decided Lynch v. Arizona without oral argument. A jury convicted Shawn Patrick Lynch of first-degree murder, kidnapping, armed robbery, and burglary for the 2001 killing of James Panzarella. The State of Arizona sought the death penalty, and, before penalty phase began, moved successfully to prevent Lynch’s counsel from informing the jury that the only alternative to a death sentence was life without parole. When the first jury failed to reach a unanimous verdict, a second jury sentenced Lynch to death. After that sentence was vacated by a state appellate court due to errors in the jury instructions, a third penalty phase jury was convened and again sentenced Lynch to death.  

On appeal, Lynch, invoking the U.S. Supreme Court’s decision in Simmons v. South Carolina, argued that the trial court’s refusal to allow mention of his ineligibility for parole violated his federal Due Process rights. In Simmons, the Court stated that “where a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole,” the Due Process Clause “entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.’” The Arizona Supreme Court rejected Lynch’s argument and affirmed his death sentence.

By a of vote of 6-2, the U.S. Supreme Court reversed the Arizona Supreme Court’s judgment and remanded the case, holding in a per curiam opinion that the Arizona Supreme Court had erred in its attempt to distinguish Lynch’s case from the situation in Simmons. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

To discuss the case, we have Marah McLeod, who is an Associate Professor at Notre Dame Law School.

Williams v. Pennsylvania - Post-Decision SCOTUScast

SCOTUScast 6-15-16 featuring Cassandra Burke Robertson
Cassandra Burke Robertson June 15, 2016

On June 9, 2016, the Supreme Court decided Williams v. Pennsylvania. Terrance Williams was convicted and sentenced to death for the robbery and murder of Amos Norwood. The Supreme Court of Pennsylvania affirmed Williams’ conviction and sentence, and his initial attempts to obtain state postconviction relief failed. His subsequent petition for federal habeas relief also failed. He again sought post-conviction penalty-related relief in state court and prevailed in the Court of Common Pleas on a claim of unlawful evidence suppression. On appeal, however, the Pennsylvania Supreme Court reversed the grant of relief and lifted the stay of execution (though a temporary reprieve was later granted by the governor for other reasons). The Chief Justice of the Pennsylvania Supreme Court, Ronald Castille, who had joined the opinion reversing the grant of relief to Williams, had also been the District Attorney for Philadelphia during Williams’ trial, sentencing, and appeal. In that capacity, Castille had authorized his office to seek the death penalty for Williams. Williams had moved to have Chief Justice Castille recuse himself from hearing the appeal of post-conviction relief, but Castille declined to do so.

The central question before the U.S. Supreme Court was whether Justice Castille’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. By a vote of 5-3, the Supreme Court vacated the decision of the Pennsylvania Supreme Court and remanded the case. Justice Kennedy delivered the opinion of the Court, which held that under the Due Process Clause, where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Kennedy’s majority opinion. Chief Justice Roberts filed a dissenting opinion, in which Justice Alito joined. Justice Thomas also filed a dissenting opinion.

To discuss the case, we have Cassandra Burke Robertson, who is Professor of Law, Laura B. Chisolm Distinguished Research Scholar, and Director, Center for Professional Ethics at Case Western Reserve University School of Law.

Racial Pretexts in Peremptory Jury Strikes: The Impact of Foster v. Chatman - Podcast

Criminal Law & Procedure Practice Group Podcast
Joseph L. Hoffmann May 25, 2016

The Supreme Court issued its 7-1 ruling in Foster v. Chatman on May 23, reversing the Supreme Court of Georgia and remanding the case. Foster was convicted of murder and sentenced to death three decades ago by an all-white jury. The prosecutor struck all of the black jurors and had plans to do so before the voir dire began. The prosecution presented several race-neutral reasons for striking the jurors, and the Georgia courts ruled against the Batson claim. Foster later gained access to the prosecution's jury-selection notes that showed some racial pretext and used them for a renewed Batson claim. The Georgia courts rejected the claim as barred by state res judicata. Chief Justice Roberts wrote for the majority of the court finding that the court did still have jurisdiction and impermissible racial pretext was apparent for at least two of the state's peremptory strikes. Justice Thomas wrote a firm dissent where he doubted the court's jurisdiction. This Teleforum discussed the ramifications of this decision on the future of Batson deference, res judicata, and how this case might affect capital appeals pending throughout the nation.


  • Prof. Joseph L. Hoffmann, Harry Pratter Professor of Law and Director for Strategic Projects, Indiana University Maurer School of Law

Kansas v. Carr - Post-Decision SCOTUScast

SCOTUScast 4-20-16 featuring Kent S. Scheidegger
Kent S. Scheidegger April 20, 2016

On January 20, 2016, the Supreme Court decided three consolidated death penalty cases: Kansas v. Carr, a second Kansas v. Carr, and Kansas v. Gleason.

A Kansas jury sentenced Sidney Gleason to death for killing a co-conspirator and her boyfriend to cover up the robbery of an elderly man. In a joint proceeding, a Kansas jury also sentenced brothers Reginald and Jonathan Carr to death for a crime spree that culminated in the brutal rape, robbery, kidnapping, and execution-style shooting of five young men and women. The Supreme Court of Kansas vacated the death sentences in each case, holding that the sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital sentencing determination” was violated by the trial court’s failure to sever their sentencing proceedings. 

The two questions before the U.S. Supreme Court were: (1) whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt”; and (2) whether the Constitution required severance of the Carrs’ joint sentencing proceedings. 

By a vote of 8-1, the Supreme Court reversed the judgment of the Kansas Supreme Court and remanded the cases. Justice Scalia delivered the opinion of the Court, which held that (1) the Eighth Amendment does not require capital-sentencing courts to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt, and (2) the Constitution did not require severance of joint sentencing proceedings because the contention that the admission of mitigating evidence by one defendant could have "so infected" the jury's consideration of the other defendant's sentence as to amount to a denial of due process does not stand in light of all the evidence presented at the guilty and penalty phases relevant to the jury's sentencing determination. Justice Scalia’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan. Justice Sotomayor filed a dissenting opinion.

To discuss the case, we have Kent S. Scheidegger, who is Legal Director & General Counsel at Criminal Justice Legal Foundation.