Justice Sotomayor's Courageous Dissent

Posted by Margo Schulter, Guest Blogger on April 12th, 2011

In her courageous and compelling dissent from a 5-4 decision of the United States Supreme Court reinstating the death sentence of California prisoner Scott Pinholster, Justice Sonia Sotomayor told how a jury deliberated for two days before returning its fateful penalty verdict -- after Pinholster's two trial attorneys failed to investigate his background, overlooking evidence of his traumatic brain injuries in early childhood, seizure disorders, and severe lifelong mental illness that would have made a powerful case for life.

Justice Sotomayor, along with her colleagues Ruth Bader Ginsburg and Elena Kagan, would have affirmed a 2009 decision of the federal Ninth Circuit Court of Appeals overturning Pinholster's death sentence on the grounds that the failure of his attorneys to search for and find this "voluminous" mitigating evidence violated his Sixth Amendment right to "effective assistance of counsel" in the penalty phase of his 1984 trial.

However, a five-justice majority led by Justice Clarence Thomas reversed the Ninth Circuit and reinstated the death sentence, holding among other things that the new evidence of the "psychotic" Pinholster's traumatic brain injury, neurological abnormalities, and severe mental illness did not raise a "reasonable probability" that if his jury had heard it they might have reached a different penalty verdict, thus "undermining" confidence in the actual verdict of death. The full text of the Court's arguments can be found here.

The case also focused on technical issues relating to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, passed by Congress to restrict the scope of federal appeals by state prisoners in capital and noncapital cases. Justice Thomas, writing for the Court, made the interpretation of these restrictions yet tighter by holding that federal courts must give full weight and deference to a state court's denial of a prisoner's constitutional claim (e.g. ineffective assistance of counsel) even if the court simply rejects a claim without stating any findings of facts or explaining its legal reasoning. The Court's holding also limited the scope of federal evidentiary hearings exploring facts not fully developed in state court that might cast additional doubt on a conviction or death sentence.

Justice Thomas was joined in his opinion by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy; Justice Samuel Alito furnished the fifth vote to reinstate Pinholster's death sentence, but wrote separately to urge the need for a broader scope for federal evidentiary hearings. Reserving judgment on Pinholster's death sentence, Justice Stephen Breyer would have remanded the case for further consideration by the Ninth Circuit, leaving that court to decide whether an evidentiary hearing might be justified under the stricter reading of the AEDPA now in effect.

Cutting to the heart of the matter, however, it was Justice Sotomayor who served as the moral and legal compass of the Court by telling the horrific story of Pinholster's brain injuries, violent abuse by his stepfather and other family members, abnormal EEG at the age of nine followed by seizure disorders, and lifelong history of serious mental illness which led to a proposal to place him in the Hope Psychiatric Institute only months before he murdered Thomas Johnson and Robert Beckett in the course of a 1982 burglary at the home of a drug dealer who was a friend of the victims.

In vivid human detail, we learn how Pinholster was run over by his mother at the age of two, and then in another car accident at the age of four or five had his head thrown through the windshield of the vehicle, suffering injuries which could explain his brain abnormalities and epileptic seizures from childhood on, as well as his evident learning disorders and psychological problems ultimately leading to an escalating pattern of violent and criminal behavior.

Together with these traumatic brain injuries went a childhood in which Pinholster and his siblings, to quote a psychiatrist who actually testified for the state, Dr. John Stalberg, had been "raised like animals, wild animals." Pinholster's stepfather had routinely beaten him -- on at least one occasion with a wooden two-by-four. The history of close family members was filled with mental illness and drug abuse as well as criminal behavior. As Sotomayor details, "Pinholster's half-sister was removed from the home as a result of a beating by his stepfather...."; and his elder brother was diagnosed as "catatonic-like" and "acutely psychotic," eventually committing suicide.

Reading these facts, one must ask, how could any reasonable court sustain a death sentence handed down by a jury in ignorance of this overwhelming mitigation, much less hold that there was no "reasonable probability" that the jury might have chosen permanent imprisonment (life without parole) if informed of the tragedy of Pinholster's entire life as well as the horror of his two murders and other crimes?

As Justice Sotomayor shows, ably commanding the Court's intricate death penalty jurisprudence developed over the last four decades while never losing sight of the human realities, proper application of recent cases would require upholding the Ninth Circuit's decision to vacate the death penalty, leaving California free either to grant Pinholster a new penalty trial where the jury can hear all the mitigating evidence, or else simply to reduce the sentence to permanent imprisonment.

As shocking as the deficiencies of Pinholster's trial lawyers, one of whom was later disbarred, perhaps even more appalling was one of the explanations offered by Justice Thomas for holding that the omitted mitigating evidence would have been unlikely to change the result: the evidence of serious "substance abuse, mental illness, and criminal problems" in Pinholster's family was "by no means clearly mitigating, as the jury might have concluded that Pinholster was simply beyond rehabilitation."

Amazingly, to justify the view that a rational jury could weigh Pinholster's tragic family background -- and presumably also his own traumatic brain injuries and resulting seizure disorders as well as his lifelong mental illness -- as factors actually tipping the scales toward death, Justice Thomas cites the case of Atkins v. Virginia (2002). There the Court likewise noted that mitigating evidence of mental retardation "can be a 'two-edged sword'" which might lead a jury to find the aggravating factor of "future dangerousness."

Whether or not Justice Thomas realized or intended it, his citation of Atkins is indeed a powerful two-edged legal sword: to avoid the risk that a jury might perversely view a defendant's intellectual disability as aggravating rather than mitigating, the Atkins Court categorically excluded the death penalty for offenders with mental retardation. And in Roper v. Simmons (2005), likewise noting a Missouri prosecutor's suggestion that the youth of a defendant who killed at age 17 was "scary" rather than "mitigating," the Court eliminated the risk of such misguided and deadly logic by categorically barring the death penalty for offenders who committed their capital crimes before reaching the age of 18.

Legal advocates have already been urging that the logic of Atkins and Simmons should be extended by barring the death penalty for all defendants with serious mental illness or organic brain damage, thus avoiding miscarriages of justice such as that documented by the Ninth Circuit and Justice Sotomayor in the case of Scott Pinholster. It is ironic that Justice Thomas, by his two-edged citation of Atkins, may have provided the most cogent argument of all in favor of barring the death penalty for the intellectually disabled.

Better yet, of course, we should categorically bar the death penalty under any circumstance.

Posted in Blog, US Supreme Court


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