The same-day transcript is obviously in need of editing, but that's understandable considering the speed with which it was produced. We appreciate the Court making this available. It is a great help to those of us out in the hinterlands who can't attend the arguments in person. Here are a few observations.
It has been noted that there is a substantial negative correlation between the number of questions a Justice asks a party and the way he or she finally votes. Applying this crude measure, we have the unsurprising tally that Chief Justice Roberts and Justice Alito asked more questions of defense counsel and Justices Stevens, Souter, and Ginsburg directed more questions to the State. Justice Thomas asked no questions, as is his custom, but given that he has voted against every attempt to expand the Lockett v. Ohio rule since he joined the Court, including his magnificent concurring opinion in Graham v. Collins, 506 U.S. 461 (1993), his position is not hard to predict. Justice Scalia actually directed about equal numbers of questions to each party, but his questions to the State were softballs. No mystery here, either. Ex-Professor Kennedy probed both parties, as is his custom, and his position is not predictable this way. The surprise is Justice Breyer, who asked nothing of the State and grilled the defense. In Brown v. Payton, Justice Breyer concurred with the majority solely on the basis of AEDPA and indicated that he would have voted to reverse but for the deference standard, which is not applicable in the pre-AEDPA Belmontes case. However, he may find this case distinguishable from Payton based on the trial counsel arguments.
A few notes on counsel's arguments:
On page 8, lines 18-20, Mark Johnson for the State appears to make a huge concession that the phrase "extenuates the gravity of the crime" is quite limited in what it allows the jurors to consider. The Chief and Justice Scalia bail him out on the next page.
Twice (31:7; 32:16-18) Eric Multhaup for the defendant tries to distinguish Graham v. Collins, 506 U.S. 461 (1993) by saying it was decided under the Antiterrorism and Effective Death Penalty Act of 1996. Ummm.... I don't think so.
Also twice (28:3-4; 34:12-14), Mr. Multhaup, a resident of the sophisticated (in its own mind) San Francisco area sneers at the residents of California's dusty Central Valley, whom he implies are a bunch of ignorant hicks incapable of understanding sophisticated concepts unless they are thoroughly spelled out. It is a good idea to be aware of your own prejudices and be aware when you are speaking to an audience that either doesn't know what you are talking about or has the opposite view. The lone Westerner left on the Court is a native of the valley in question.
At the top of page 36, Mr. Multhaup declares that the distinction between precrime mitigation evidence and postcrime mitigation evidence is irrelevant. Justice Kennedy is clearly taken aback, saying, "I thought that was the linchpin of your argument." In certainly is central to Judge Reinhardt's dismissal of Payton as precedent after being specifically instructed to consider it, and the distinction is indeed irrelevant. That is one reason why Judge Reinhardt's opinion is specious.