On Monday, in the first decision of this term, the Supreme Court reversed the 9th's fretfulness on behalf of Fernando Belmontes. Belmontes's attorney asked the trial judge to specifically instruct the jury to consider Belmontes's ability to live acceptably in prison. Instead, the judge used California's "catchall mitigation instruction," which was declared constitutional in 1990. It tells a jury weighing capital punishment that it can consider many things (e.g., the use of force or violence, the defendant's age, any extreme mental or emotional disturbance, prior felony convictions). Belmontes's case turned on whether the jury understood one provision of the catchall instruction -- to consider "[a]ny other circumstance which extenuates the gravity of the crime" -- to include the "forward-looking" consideration that life imprisonment might be a suitable punishment.George Will is not a stupid man. But he downplays the very real importance of jury instructions to make his case against the "liberal" 9th Circuit. Here's a better explanation of how important it is to get jury instructions right, from Brian Tananaha at Balkinzation (please forgive the lengthiness of the quote, but it's all worth reading):
[Judge Stephen] Reinhardt, writing for the 9th's divided three-judge panel, overturned Belmontes's death sentence because the trial judge "failed to instruct the jury that it was required to consider" what Reinhardt considered Belmontes's "principal mitigation evidence" -- his aptitude for prison life. On Monday the Supreme Court ruled 5 to 4 against the 9th.
If you have ever wondered where or when or how law comes into play in an actual case, the answer is that the jury instructions are the law. In both civil and criminal cases, the jury is charged with deciding whether the evidence satisfies the legal requirements specified in the jury instructions. Lawyers, for this reason, spend hours fighting over which instructions should be read to the jury and over their precise wording. Appeals are often based on arguments that an instruction read to the jury was erroneous.
Now let's talk about the reality, a reality I observed first hand as a trial lawyer and as a clerk to a federal district judge. The only way to understand this reality is to actually get a taste of a jury instruction. Therefore, with an apology offered in advance, read this actual jury instruction from New York (and feel free to skip to the bottom when it becomes unbearable), setting out the liability of a landlord:
A lessor is required to disclose to the tenant any dangerous condition of the premises, existing when the tenant is given permission, of which the lessor knows or has reason to know and which is not discoverable by the tenant on reasonable inspection. If you find that the condition of the premises at the time plaintiff was given posession was dangerous, that defendant knew of the condition or of facts or circumstances from which a person of reasonable intelligence would believe that such dangerous condition existed, that the condition was not known to plaintiff or discoverable by (him, her) in the use of reasonable care, that defendant failed to warn plaintiff of the condition or advise (him, her) with the facts and circumstances of which defendant was aware, and that the condition was a substantial factor in producing plaintiff's injury, you will find for the plaintiff (on this issue). If, however, you find that no dangerous condition existed on the premises when plaintiff was given possession, or that although there was such a condition defendant did not know of it and did not have reason to be aware of it, or that plaintiff knew of the condition or could have discovered it had (he, she) made a reasonable inspection, or that the condition was not a substantial factor in causing plaintiff's injury, you will find for the defendant (on this issue).
Everyone got that, right?
This is typical of jury instructions in form, style and terminology. Now imagine that, rather than reading it for yourself, these instructions are read to you by a judge, and imagine that this reading session goes on for one or two or more hours. When sitting through these truly painful sessions as a lawyer or clerk--struggling to concentrate on the instructions as a way to stave off boredom--I have seen jurors yawn repeatedly, close their eyes for a spell (to concentrate, I presume), or simply fix an unmoving gaze at a spot on the opposite ceiling.
You are getting the picture, but the situation is even worse. Although juries often have questions about the instructions, judges are extremely reluctant to elaborate or explain for a reason alluded to earlier: appeals are often based on claimed errors about the precise wording of the instructions. Any elaboration or explanation offered by the judge adds more words, words which can arguably improperly change the meaning of the instruction, generating further issues for appeal. To avoid this problem, many judges will simply re-read the instruction (which no one wants), or read another equally complicated pre-written clarification, or simply tell the jury to figure it out the best they can ("Good luck!").
This is the reality of jury instructions.
Now the issue in the Belmontes' case is whether the instructions the court gave to the jury in the sentencing phase made it clear to the jury that they should consider Belmontes' behavior in his time in prison, as both the California and United States Supreme Court have ruled that a jury must. You tell me if you get that sense from the actual instructions in the case:
"In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as hereafter instructed. You shall consider, take into account and be guided by the following factors, if applicable:
(g) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."
Does that include the prisoner's post-conviction conduct? Who knows? The 9th Circuit thought it did not. The conservative wing of the Supreme Court, based on what they believed to be a reasonable interpretation of the instructions and dismissing indications that the jury might have been confused about what mitigating factors they could consider, thought that the instructions were sufficient. Simply reading that, what would you think?
The Supreme Court may be correct. Perhaps the jurors understood the instructions exactly, and took into consideration Belmontes' post-conviction behavior. Then again, maybe the 9th Circuit is right and the jurors didn't really understand that, and perhaps Belmontes' model behavior would sway a juror to sentence him only to life in prison instead of death. In fact, maybe that would make all the difference in the world to a jury.
The problem I have with Will is that he takes this issue and downplays it's importance so he can knock on the 9th Circuit for being too liberal. But I can't say it any better than Brian Tananaha does above; jury instructions are the law, because they are the only guidance the jury gets as to what they can and cannot weigh and how they can and cannot decide. And in this case, a failure of those instructions can result in a man being put to death, who otherwise might not be so condemned(and whether or not you think he deserves it, is another issue.) It's intellectually dishonest to make so light of an issue of such great importance, and Will ought to know better.