The Supreme Court's Make-Believe World

I just read the Supreme Court’s decision in Ayers, and I have to say that Justice Kennedy’s majority opinion is one of the most bizarre exercises in after-the-fact speculation I have read.

As Mike notes below, the defendant argued that the jury instructions precluded jurors from considering mitigating evidence that he would lead a constructive life if sentenced to prison rather than executed. Taking the instructions at face value, the defendant seems right. Factor k (the instruction at issue) says jurors may consider “any other circumstance which extenuates the gravity of the crime,” but says nothing about mitigating evidence unrelated to the crime, such as the possibility of future good conduct. In two previous cases, however, the Court rejected the argument that factor k necessarily precludes consideration of mitigating evidence unrelated to the crime. Instead, the Court ruled, factor k is invalid only if “there is a reasonable likelihood” that the jury understood the instructions in that way.

The question for the Court in Ayers, therefore, was how the jury had understood factor k. In the real world, someone trying to answer this question would ask the jurors themselves. But in the make-believe world of the Supreme Court, Kennedy answers the question by examining the statements of the lawyers and trial judge in the case. For instance, Kennedy notes that although the prosecutor told jurors he did not think the defendant’s religious experience fit within factor k, he also said it was a “proper subject of consideration.” Based on other statements by the prosecutor, Kennedy concludes that “the jury would have realized that, when the prosecutor suggested [defendant’s] religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury’s ability to consider it.” Maybe. Or maybe the jurors, at the end of a long trial, did not follow the nuances of the prosecutor’s argument as closely as Justice Kennedy. Kennedy also notes that “the judge told the jury to consider ‘all of the evidence’ and ‘all of the evidence’ included [defendant’s] forward-looking mitigation case.” True. But the judge qualified this command with the words “except as you may be hereafter instructed.” Kennedy says the jury would not have interpreted factor k as a limitation on what evidence it could consider. But how does he know that? Jurors are lucky if they understand half of what the judge says. Expecting them to follow the twists and turns of a judge’s instructions with the precision of an attorney reading a cold record is ridiculous.

My criticism here is not so much with Kennedy’s analysis. Given the Court’s precedents, he had no choice but to speculate about the jury’s understanding of factor k. But the Court never should have made the constitutionality of that instruction turn on such a speculative inquiry. The question should be “what does the jury instruction say?” not “how would the jury have understood it?” If the instruction does not make clear that the jury can consider all mitigating evidence, whether related to the crime or not, it should be invalid. Fortunately, California now appears to get this point; it has revised factor k to make clear that all mitigating evidence can be considered. Perhaps the Court will someday get the point, too.