WASHINGTON (CN) — One of the brothers behind a string of fatal home robberies told the Supreme Court on Wednesday that it was wrong to put him on death row without letting a jury hear about the difficult circumstances of his childhood.
Though convicted by a jury in Arizona, James McKinney was given a death sentence by a trial judge.
"If McKinney were sentenced today, no one doubts he'd be entitled to a jury trial," the man’s attorney Neal Katyal, of the firm Hogan Lovells, said Wednesday before the high court.
McKinney's childhood was harsh: His mother would routinely flee with McKinney and his two sisters, only for their alcoholic father to track them down and drag them back until she fled again. The father accused McKinney’s mother of locking the children, hungry and sick, in closets. He remarried and got custody, but the conditions in this new home were squalid and even more abusive. McKinney’s stepmother had a penchant for delivering regular beatings and bringing home animals, including a boa constrictor and a monkey. McKinney and his siblings were often covered in bruises and welts, wore dirty clothes stained with urine and were largely forced to fend for themselves.
At age 11, McKinney sought refuge at his aunt's house but soon found himself in juvenile detention where he then turned to drugs and alcohol, dropping out of school in seventh grade.
After McKinney was convicted of murder in Arizona, he sought to introduce a diagnosis of post-traumatic stress disorder before sentencing. While the judge accepted the diagnosis, Arizona law at the time prohibited him from considering it as mitigating evidence because it was not sufficiently connected to the crime.
McKinney in turn filed a federal habeas petition arguing the U.S. Supreme Court's 1982 decision in Eddings v. Oklahoma required the judge in his case to consider his diagnosis. In a decision finding Arizona had for 15 years violated Eddings' requirement that judges consider mitigating evidence in capital cases, the Ninth Circuit sided with McKinney.
The Arizona Supreme Court ultimately conducted an independent review of McKinney's case but still denied his request for a new sentence. Though McKinney said he was entitled to have a jury make the findings necessary to impose the death penalty, the Arizona bench held that the U.S. Supreme Court's 2002 decision Ring v. Arizona was not in effect when his conviction became final.
The Ring decision, coupled with the 2016 decision in Hurst v. Florida, requires juries, rather than judges, to make the factual findings necessary to impose the death penalty.
Katyal told the justices during Wednesday's oral arguments that the Arizona high court was mistaken because the review it conducted amounted to a reopening of McKinney's proceedings. That would mean the court should have applied current law — namely Ring and Hurst — and sent the case back so McKinney could get the jury determination that he never received.
Even if Ring and Hurst do not apply, Katyal argued all violations of Eddings must be remedied with a sentencing before a trial court judge. Unlike appeals court judges who reach their decisions based on a record, trial court judges can hear live testimony and see the defendant whose life he or she will weigh.
"If you allow a reweighing for the first time on an appellate court when there's never been one in the trial court, you're basically doing everything at that second stage," Katyal said. "And that, I think, is profoundly against what this court's precedents are."
Justice Samuel Alito challenged Katyal's arguments, saying it seemed he was trying to get his client the benefit of precedents the Supreme Court expressly declined to make retroactive.
"You are effectively getting retroactive application of Ring, which is not retroactively applicable to anybody else," Alito said. "And not only that, what you really want, I gather is not the correction of a Ring error. It is another shot at a convincing a jury to hold that somebody who is going to be found death-eligible in all likelihood should, nevertheless, not get the death penalty."
Arizona Solicitor General Oramel Skinner told the justices that Katyal was focusing on the wrong precedents. Under the Supreme Court's decision in Clemons v. Mississippi, appeals courts are able to do the work of weighing mitigating and aggravating factors in death penalty cases, Skinner said.
He further argued McKinney's case was final and that the appeals court was simply reviewing its own error during the independent review proceeding.
"It's an appellate court correcting an appellate error on a built record," Skinner said. "There has never been an allegation of something that was excluded from the record that might make this case very different."
But some of the justices did not see this argument. Justice Sonia Sotomayor asked how McKinney's case could be final if the appeals court could still change how it was resolved.
"If a judgment can be modified, it seems like more than semantics to say I didn't reopen for reconsideration," Sotomayor said. "You can't reconsider what I won't change.”
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