Ninth Circ. Ruling Shakes Up Ariz. Death Row

     (CN) – By shutting out evidence of convicted double-murder James McKinney’s post-traumatic stress disorder, the Arizona Supreme Court unconstitutionally condemned the man to death, a deeply divided en banc panel of the Ninth Circuit ruled Tuesday.
     The ruling could disturb every death sentence imposed in Arizona between 1989 and 2005, the dissenting judges said.
     In 1991, McKinney and his older half-brother committed two burglaries, and in each crime one of the brothers killed a victim with a gunshot wound to the back of the head.
     Although the brothers dispute who pulled the trigger in each crime, separate juries found McKinney guilty of two counts of first-degree murder, and convicted his brother of one count each of first- and second-degree murder.
     A trial judge sent McKinney to death row in 1993, a ruling upheld by the Arizona Supreme Court three years later.
     In denying the appeal, the state’s highest court refused to consider evidence of McKinney’s severely abusive upbringing because it found no “causal nexus” between his trauma and his crimes.
     The Arizona Supreme Court practiced its so-called “causal nexus” test for capital crimes for 16 years before abandoning it in 2005.
     McKinney’s latest habeas challenge may call into question all death-penalty cases during this period.
     Two years ago, the Ninth Circuit unanimously rejected his habeas petition, but the appellate court subsequently granted a rare en banc review before 11 judges.
     On Tuesday, a 6-5 majority found the Arizona Supreme Court’s refusal to hear mitigating evidence before imposing the death penalty violated the landmark U.S. Supreme Court decision in Eddings v. Oklahoma.
     “For a period of a little over 15 years in capital cases, in clear violation of Eddings, the Supreme Court of Arizona articulated and applied a ‘causal nexus’ test for nonstatutory mitigation that forbade as a matter of law giving weight to mitigating evidence, such as family background or mental condition, unless the background or mental condition was causally connected to the crime,” Circuit Judge William Fletcher wrote for the majority.
     The majority ordered the district court to grant McKinney’s habeas petition unless Arizona reduces his sentence or allows him to submit mitigating evidence at another hearing.
     McKinney’s attorney Ivan Mathew said in a phone interview that he has not yet spoken to his client about the ruling.
     “I’m sure that [McKinney] will be relieved that his sentence of death has been reversed, and I’m enormously grateful that the United States Court of Appeals listened to why we believed that his sentence was imposed in an unconstitutional manner,” Mathew said.
     Regularly beaten from a “very young age,” McKinney ran away from home at the age of 11 from Arizona to Oklahoma to escape the violence and neglect of his biological parents and stepmother, his lawyer said.
     McKinney was three years old when his mother left his alcoholic father and kidnapped the children, taking them through several states before the father regained custody.
     When the father remarried, McKinney’s stepmother took to beating the children with “anything she could get in her hands” – plastic switches, cords, belts and a hose, according to the 58-page opinion.
     The majority opinion details the squalor of life on the family farm, where the house was filled with animal feces, the kids rarely bathed and the parents severely punished the smallest infraction.
     Dissenting Circuit Judge Carlos Bea was not unmoved by McKinney’s “squalid, horrid childhood,” nor did he doubt “expert testimony that, as a result of that childhood, he developed post-traumatic stress disorder.”
     But Bea, and a slim minority of his colleagues, argued that the Arizona Supreme Court’s decision to disregard this evidence could not be questioned under the Antiterrorism and Effective Death Penalty Act of 1996.
     Signed by then-President Bill Clinton, the law mandated federal courts to presume that “state courts know and follow the law.”
     “Also quite troubling, the majority wrongly smears the Arizona Supreme Court and calls into question every single death sentence imposed in Arizona between 1989 and 2005 and our cases which have denied habeas relief as to those sentences,” the 47-page dissent stated.
     There have been at least 10 death-penalty cases before the Ninth Circuit alleging that the Arizona Supreme Court violated Supreme Court precedent by treating mitigating evidence as legally irrelevant, according to the majority opinion.
     On April 9, 2014, the Federal Public Defenders of the District of Arizona submitted a friend-of-the-court brief urging the Ninth Circuit to reach this outcome to demonstrate that the “meaningful consideration of relevant mitigating evidence regarding the defendant’s character is a constitutionally indispensable part of capital sentencing.”
     A co-author of the brief, attorney Robin Konrad, estimated that 13 death-penalty defendants at the time had their cases hanging in the balance of the decision, and the Ninth Circuit’s ruling would serve as a guide for how lower courts will handle their appeals.
     “The McKinney court correctly recognizes that the Arizona Supreme Court historically imposed an unconstitutional restraint on the full consideration of relevant mitigating evidence in death penalty cases,” Konrad said in an email statement. “This ruling provides guidance to courts reviewing claims presented by Arizona death-sentenced prisoners whose mitigation was not properly considered.”
     A spokeswoman for the Arizona Attorney General’s Phoenix office declined to comment.

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