The U.S. Supreme Court this morning reinstated the death sentence in the case of Ayers v. Belmontes. The vote was 5-4 along the usual lines. Here is the decision, which was posted with unusual promptness.
The case involves an instruction formerly given to jurors in California capital cases, specifically whether it is broad enough to allow the jury to consider everything the defendant throws against the wall, as required by the Court's dubious decision in Lockett v. Ohio, 438 U. S. 586, 604 (1978). The Court held that it was broad enough sixteen years ago in Boyde v. California, 494 U. S. 370 (1990). Only by giving Boyde a cramped reading and by splitting hairs on the facts of the case could one find an "error" here. "The Court of Appeals erred by adopting a narrow and,we conclude, an unrealistic interpretation of factor (k)." It is not surprising that the notorious Judge Reinhardt of the Ninth Circuit would issue such a ruling or that Judge Paez would join it. It is also not surprising that the Ninth would fail to correct the error en banc, as that court almost never corrects panel errors in favor of capital defendants. It is rather disturbing that four Justices of the Supreme Court would join in such a cramped application of the Court's own precedent.