Notwithstanding Justice Stevens' curious dissent, which will be addressed in a separate post, the facts of the crime are quite relevant. Cal Brown is a sadistic rapist, torturer, and murderer.  He put two women through hell. One miraculously survived, but Holly Washa did not. A two-day ordeal of repeated rape and torture finally ended when Brown cut her throat and stabbed her as she lay bound and gagged in the trunk of her own car. The details can be found in the Washington Supreme Court opinion at 132 Wn.2d 529, 940 P.2d 546 (1997). Judge Kozinski's flippant introduction to the case in the Ninth Circuit opinion, "Cal Brown is not a nice man," displays a disturbing insensitivity to the reality of crime.

The death penalty serves three functions: deterrence, incapacitation, and retribution. In a particular case, a sadist such as Brown might be incapacitated by a sentence of life-without-parole, but horrible crimes such as this cry out for the death penalty on retribution alone. State law provides the criteria for determining whether a determining whether a murderer is eligible to be considered for the death penalty. Once determined eligible, jurors must decide whether to impose that penalty based on the aggravating and mitigating circumstances.

At the voir dire in Brown's trial, Juror Z indicated an idiosyncratic view that only "volunteers" and persons who would be dangerous in the future could be considered. He was unable to come up with any additional examples where the death penalty would be appropriate. As today's opinion notes, "That is equivalent to treating the risk of recidivism as the sole aggravating factor, rather than treating lack of future dangerousness as a possible mitigating consideration." The penalty phase is weighted enough in the defendant's favor as it is, without jurors making up additional requirements.

Although Juror Z said at times he would follow the law, the Supreme Court noted that "these responses were interspersed with more equivocal statements." Significantly, defense counsel stated he had "no objection" when the prosecutor challenged Juror Z for cause, although he vigorously, and often successfully, challenged the removal of other jurors.

The emphasis in today's decision is deference to the trial judge. A reviewing court reading a transcript simply cannot know all that is happening in the courtroom. The nonverbal signals of mannerisms and tone of voice are not just as important as the words spoken, they are more important. Failure of otherwise vigorous defense counsel to object, even though not a default under Washington law, is nonetheless highly relevant as a matter of fact. When all three of the key actors in the courtroom, the judge and the two lawyers, treat the juror as obviously excludable, a contrary conclusion on the transcript alone is not one to be reached without compelling reason. When a juror's statements are inconsistent, the decision as to which ones reflect his actual beliefs and probable performance as a juror are exactly the kind of determination that should be left to the trial judge and not second-guessed by reviewing courts. Today's decision correctly so holds.

The Supreme Court also chides the Ninth Circuit, not for the first time, for an excessively critical review of the state court opinion. That opinion filled over a hundred pages of the official reports, with 71 headnotes. Given the everything-including-the-kitchen-sink briefing that is so typical in capital cases, a lengthy essay on every point cannot be expected. That is particularly true of a ruling to which trial counsel did not even object. This is the primary AEDPA lesson from today's case.