The Death Knell of Residual Doubt: The Supreme Court Underestimates the Relevance of Innocence

By SHERRY F. COLB

Wednesday, Mar. 08, 2006

Two weeks ago, in Oregon v. Guzek, the United States Supreme Court held unanimously that a capital defendant does not have the right to present evidence of innocence for the first time at his sentencing hearing.

In an opinion by Justice Breyer, a majority ruled that the trial court had not denied the rights of a condemned man, Randy Lee Guzek, when it refused to allow the man's mother to provide alibi testimony at her son's sentencing hearing.

Though the Court avoided addressing the issue head-on, it strongly implied that the Eighth Amendment right to present "mitigating evidence" to a capital sentencing jury does not contemplate "residual doubt evidence." (A defendant offers "residual doubt" evidence to show that although the jury has found guilt beyond a reasonable doubt, enough doubt remains to caution against a death sentence.)

The Court's judgment, though unanimous, was wrong.

The Right to Present Mitigating Evidence

In a group of cases that includes Lockett v. Ohio and Eddings v. Oklahoma, the Supreme Court has read the Eighth Amendment to protect a capital defendant's right to present mitigating evidence prior to being sentenced. A defendant must be allowed to make a case to the jury that despite his conviction, he or she does not deserve to die.

Accordingly, the Court held in Penry v. Lynaugh that Texas violated the rights of mentally retarded defendants by failing to provide an avenue through which they could offer evidence of developmental disability as a basis for refraining from imposing the ultimate sentence. (The Supreme Court has since held, in Atkins v. Virginia, that mentally retarded people may not be executed at all.)

Was Guzek's Evidence "Mitigating"?

Was the alibi evidence that Guzek wanted to present at his sentencing hearing "mitigating" evidence?

The Court correctly observed in Guzek that mitigating evidence offered during the sentencing phase of a capital trial ordinarily goes to the question of how, rather than whether, the defendant committed the offense of conviction.

On the "how" question, the defendant - conceding his guilt -- might present the jury with evidence suggesting that he played a less significant role in the crime than an accomplice, that he is otherwise a good person, or that he experienced a deprived childhood or suffered abuse that made it hard for him to develop into a law-abiding adult.

Some defendants, instead or in addition to such mitigation, raise the issue of innocence, on which they lost at trial. They do so to try to create "residual doubt" - which, once again, is doubt that remains even after a conviction and that cautions against imposing the irreversible penalty of death.

Randy Lee Guzek had hoped to introduce such evidence by calling his mother to provide previously unheard alibi evidence indicating that Guzek had been with her during a significant portion of the time during which he had allegedly been committing murder. If the jurors had found her testimony on this point at all credible, then they might - despite their conclusion that he did commit murder - select imprisonment over execution, just to be on the safe side.

Such evidence goes to the question of "whether" rather than "how" (or why) the defendant committed his crimes.

The Court Should Have Deemed Innocence Evidence "Mitigating"

Though there surely are differences between "how" and "whether" evidence, the differences do not militate against the characterization of either one as "mitigating."

Jurors' decision to impose a death sentence emerges from a sense of confidence that the individual before them truly deserves to die. To present mitigating evidence is to attempt to undermine that confidence.

For a juror who believes that the death penalty is sometimes justified, any convicted murderer could potentially qualify for execution. The details of the murder could be "aggravating" factors, in that they help make the case for execution: the victim was especially vulnerable, or the defendant's motive extremely ugly (greed or racial hatred, for instance), or the murder one involving the infliction of excruciating pain.

Conversely, the details of the murder could mitigate culpability: the victim cruelly taunted or otherwise provoked the murderer (though not sufficiently to reduce the charge to manslaughter), the victim abused the murderer in the past, or the killing was deliberately carried out in a manner that would minimize the victim's suffering. Such details could persuade jurors that the defendant deserves a "second chance" (to the extent that life imprisonment can be so characterized) and is not beyond redemption.

Evidence of Innocence May Be the Most Mitigating Of All

Though such details about the commission of a crime might influence the jury to take mercy on a guilty defendant, nothing could more effectively shatter its confidence in the rightness of death than doubt about the predicate fact of guilt.

No matter how heinous and cruel a murder, no juror wants to play a role in sending the wrong person to die for it. And conversely, as terrible as a life sentence may be, the jury that harbors some remaining doubts about guilt (and therefore sentences a defendant to life) can comfort itself with the knowledge that if facts demonstrating innocence emerge, the wrongly convicted man will gain his freedom. To sentence a person to death is to despair of any such possibility.

If we ask people who oppose the death penalty what drove them to their position, their answers can illuminate the meaning of relevant mitigating evidence.

Some people oppose capital punishment because they believe that no one is completely beyond redemption. While a supporter of the ultimate penalty might disagree with the absolute nature of such a sentiment, he or she could nonetheless use the "beyond redemption" criterion to separate those who deserve death from those who do not.

Famously - with the emergence of "innocence projects," which investigate and expose wrongful convictions - we now know that juries sometimes find innocent people guilty of crime and occasionally sentence those people to die. Many opponents of the death penalty cite as an explanation for their stance the risk (and over time, the certainty) that the State will unwittingly take the lives of innocent people in its quest to execute the most heinous criminals among us.

Likewise, a group of jurors otherwise comfortable with the imposition of the death penalty might well hesitate to impose the punishment on a particular convicted defendant in the face of evidence that casts doubt - even a small amount of doubt - on the correctness of the guilty verdict.

The Majority's Punt

The majority opinion punts on the ultimate question. It says that it does not need to decide whether the Eighth Amendment ever requires the admission of residual doubt evidence, because the State of Oregon's law permits the defendant to offer such evidence as long as he already introduced it at trial.

In a concurring opinion, Justice Scalia makes plain his irritation with the Court's dodge of the real question. And Justice Scalia has a fair point: the Court's logic throughout the opinion suggests that innocence evidence is not mitigating at sentencing, only to surprise the reader at the end by refusing to say so categorically. Unfortunately, asserts Justice Scalia, such equivocation can only result in confusion among the lower courts on the question of how much innocence evidence must be admitted at the sentencing phase of a capital trial to satisfy the Supreme Court's possible, but unlikely, requirement of residual doubt mitigation.

Most disturbing, however, is not the Court's cowardice in punting on this question, but the lack of a single dissenting voice in the crowd. One might have hoped that an opinion whose logic leads inexorably to the exclusion of residual doubt evidence at capital sentencing would have provoked, at the very least, a concurrence suggesting that a State that refused to permit innocence evidence at the sentencing phase of a capital trial would be acting in violation of the Eighth and Fourteenth Amendments. In so hoping, of course, one would have been very disappointed.

Is Residual Doubt Evidence Consistent with a Guilty Verdict?

Justice Scalia and a majority of the Court argue that evidence of innocence is inconsistent with a verdict of guilt in the underlying crime. They contend that the defendant has already litigated the matter of guilt and has no right to turn the sentencing hearing into a referendum on the guilt phase.

This sounds reasonable enough, particularly when the jury adjudicating guilt is the same one determining the sentence. But it ultimately is not as reasonable as it sounds.

The earlier Court decisions requiring the consideration of mitigating evidence stood precisely for the following proposition: Knowing that the evidence proves a defendant guilty of murder beyond a reasonable doubt cannot automatically lead to a death sentence. A jury must have the opportunity to examine evidence suggesting that the guilty verdict (and the evidence supporting that verdict) provide an incomplete picture of the facts relevant to sentencing.

One way to fill in the gaps is to argue that the defendant suffered a terrible childhood or otherwise failed to thrive in a way that might have led to a different sort of life. Another approach is to argue that the defendant has done a great deal of good in his life and, on the whole, should therefore be spared in honor of that good.

And yet another, equally valid, way to paint a fuller picture of the convict is to suggest that, even though he is extremely likely to have committed the crime in question - likely enough to justify a sentence of life imprisonment without the possibility of parole - the evidence supports a small quantum of doubt - something less than "reasonable doubt" -- that should lead the jury to hesitate in its imposition of the most irreversible penalty.

For the Court to refuse to provide space for such hesitation expresses a confidence in the rightness of verdicts and executions, a confidence that many jurors - and many judges who might have become Justices in place of those who currently sit - might well not share.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More