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The Uttecht v. Brown Dissent


Justice Stevens's dissenting opinion today in Uttecht v. Brown begins strangely. It also ends strangely.  It is also strange in between.

Huh? On page one, Justice Stevens drops a footnote that begins, "The Court opens its opinion with a graphic description of the underlying facts of respondent’s crime, perhaps in an attempt to startle the reader or muster moral support for its decision." Did he read the same opinion I did? The one released by the Court today says this about the crime: "Respondent Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California." That's graphic?  Not in my book.  That is quite abbreviated and nonspecific.

Undeterred by the fact that there is no graphic description, Justice Stevens goes on to say this about it. "Given the legal question at issue, and the procedural posture of this case, the inclusion of such a description is, in my view, both irrelevant and unnecessary." As noted in the previous post, the facts of the crime are quite relevant. The retributive interest of the state in punishing the very worst murderers, for whom anything less than death would be travesty, can be blocked by a juror who refuses to consider that penalty.

Even aside from the particular application to this case, the facts of the crime are always relevant. Unlike legislators, who enact laws in the abstract, judge-made law is made in the context of specific cases affecting real people. One of the strengths of making law this way is that real-life applications of the rule are in the picture from the beginning. Excessive appellate scrutiny of trial court decisions results in extremely evil people getting off with inadequate punishment for the worst misdeeds. That is a fact that the Olympians should always keep in mind as they weigh the costs and benefits of their decisions and issue their pronouncements. Omitting or soft-pedaling the facts of the crime tends to detach the judges from the real-world effects of their decisions, and reduce criminal law to an abstract intellectual exercise. It is not, and it shouldn't be treated as one.

Huh2? At the end of the opinion, Justice Stevens refers to the fact that Judge Kozinski, author of the opinion reversed by the Court today, once clerked for Chief Justice Burger. This has nothing to do with the case. What a federal appeals judge "was entitled to assume" is similarly irrelevant. This case is not about hurting the feelings of a judge whose opinion is reversed. This is about justice in the case of an exceptionally evil person who inflicted enormous pain on helpless women for the sheer perverted joy of doing it.

In between, the opinion is an exercise in hyperbole. Justice Stevens correctly quotes Justice Rehnquist's opinion for the Court in Lockhart v. McCree for the proposition that, "those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." So far, so good, but Juror Z's statements in the present case, taken as a whole, are far from clear. Also, the "state clearly" dictum of Lockhart should not be understood to require that a judge accept every statement at face value. People do, after all, often stretch the truth and sometimes outright lie. Where a juror's statements are inconsistent, surely it lies within the province of the trial judge to decide which ones reflect his real feelings and likely actions.

Yet to read today's dissent, one would think that the entire Witherspoon-Witt line of cases had been overruled. "[B]ut in this case there was absolutely no basis for striking Juror Z." Absolutely?  That is the kind of overstatement that supervising attorneys must repeatedly edit out of the work of rookies. It is not the only one. "Juror Z unambiguously asserted his full capability to follow the law." No, there is ambiguity if you consider all the statements. Justice Stevens, of course, is not a rookie. Perhaps this opinion was written by a person of more recent vintage and insufficiently edited.

The sky is falling, we are told. "[T]he perverse result of its opinion is that a juror who is clearly willing to impose the death penalty, but considers the severity of that decision carefully enough to recognize that there are certain circumstances under which it is not appropriate ... is 'substantially impaired.' It is difficult to imagine, under such a standard, a juror who would not be considered so impaired...." Take a deep breath. The opinion does not say or imply that. It says only that in a borderline case of a juror who may or may not have been excludable under the Witt standard, the trial judge is in the best position to make the determination, and reviewing courts should recognize that.

It is one thing to disagree with the result and reasoning of a decision. It is another to write opinions like this one.  Among the peaks and valleys of judicial opinion writing, this is a deep valley.


I prosecuted Brown in California, and secured a life sentence for him.

The Court's brief description of what Brown did to his victim in California is mild at best. The crimes committed against this victim were predatory and vicious. But for a miraculous rescue of this victim from his clutches, this woman would have faced the same fate as the young girl in Seattle.

Paul, you are to be commended for your role in ensuring this animal will never walk the streets again. Hopefully, Washington soon will ensure that he won't walk at all.

It is funny that Justice Stevens would complain about a recitation of the facts in the case. First of all, the "death is different" meme institutionalizes the practice of the facts (i.e., a death sentence) influencing Supreme Court decisionmaking. Second, Stevens, in Stewart v. McCoy sang a completely different tune. In his statement regarding the denial of cert. in that case, Stevens stated that a harsh sentence for a relatively minor offense was justification for the denial of cert. Now I grant that that the decision to deny cert. is different from a rationale for a legal holding, but it is stunning that a Supreme Court Justice would so plainly state that "a harsh sentence" would influence his vote to grant or deny cert. in a habeas case. To say the least, his harrumph about the recitation of the facts is somewhat in tension with his statement in Stewart v. McCoy.

Here's a link to Stewart v. McCoy:


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