The brief for the defendant/habeas petitioner/Supreme Court respondent has been filed in the case of Ayers v. Belmontes, previously noted here. The merits briefs filed so far are collected here.
Curiously, there are no amici supporting the defendant. This seems to be happening more often in capital cases. We saw it last term in Oregon v. Guzek. Why none in this case? Maybe the national capital defense folks are focused on the South and consider this a uniquely California problem. Maybe they consider it a hopeless loser and don't want to throw resources on a lost cause. Maybe defense counsel asked them not to, on the theory that flocks of amici would be inconsistent with his strategy of painting this as a fact-bound case of limited significance.
At the certiorari stage, it is rare for amici to file in support of respondent and common for counsel to discourage anyone from doing so. Indeed, this brief is a quite good Brief in Opposition for the certiorari stage. The brief goes into the details of what happened at the trial, trying to paint this case as unique. The problem is, the cert. stage is past. The Court has decided that this case is broad enough to warrant its attention on the merits. Perhaps counsel is trying to get the Court to dismiss as improvidently granted, but that would be a very long shot.
The brief is most remarkable for what it doesn't say. The Supreme Court vacated the Ninth Circuit's previous opinion and sent the case back for reconsideration in light of Brown v. Payton. The Ninth declared Payton irrelevant and reissued largely the same opinion. One would expect considerable discussion of Payton in this brief, but it is barely mentioned. This is the entire discussion:
This case is not like Boyde or Brown v. Payton, 544 U.S. 133 (2005), in which the jurors could have been misled by the instructions only if they viewed the entire penalty defense as a “charade.” Here, respondent’s evidence fell within a number of mitigation categories, some of which would likely be given due consideration under the view described in Boyde that a hard lot early in life mitigates bad conduct later in life. However, what made respondent Belmontes different from the countless capital defendants with sorry stories of deprived childhoods is that when he was committed to an institutional setting with internal structure and clearly prescribed goals, he shaped up. His death verdict was unconstitutional because his jury was all too likely deterred from considering his positive prospects for institutional adjustment as an extension of his admirable adaptation to the Youth Authority as a reason for voting life.
The argument that Belmontes' mitigation evidence "would likely be given due consideration" but not in the manner most favorable to him may well concede the whole ballgame. Under Johnson v. Texas, discussed in Part III of the CJLF brief, this is not a constitutional defect. As long as the jury has any vehicle for giving effect to mitigating evidence, there is no constitutional requirement that it be the vehicle most desired by the defendant. A holding to the contrary would be a new (and wrong) rule. Respondent's brief does not mention Johnson v. Texas.
The brief devotes only a scant three pages to the question of whether the Ninth Circuit created a "new rule" within the meaning of Teague v. Lane. The question of where an application of old rules ends and the creation of new ones begins has been a difficult one, which one reason is why Congress largely eliminated the distinction for cases governed by AEDPA. The apparent conflict between the Ninth Circuit's theory and Texas v. Johnson would seem to call for some explanation beyond saying "it all follows from Lockett and Eddings," which is essentially all this section says. That argument worked in the first Penry case, but the author and deciding vote in Penry is gone. The argument has never worked since. It didn't work in Graham v. Collins. It didn't work in Beard v. Banks. It is most unlikely to work here.
Reversal is highly likely in this case. The main question is how broad or narrow the decision will be. Stay tuned.