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Overriding the Jury's Penalty Verdict

A judge in San Joaquin County, California has overturned the jury's death verdict for a repeat murderer, Jennie Rodriguez-Moore reports in the Stockton Record.  John Lydon was already in prison for 69-to-life when he murdered his cellmate.  Society's choices to punish him therefore come down to two: (1) death; or (2) no punishment at all.

The jury was unimpressed with Lydon's "bad childhood" mitigation and chose to punish him.  In California (unlike, e.g., Florida), the jury returns a penalty verdict, not a recommendation.  The judge has the authority to set it aside on the ground that it "is contrary to law or evidence," not merely that the judge would have reached a different decision if it has been his to make from the beginning.

The story says that the prosecutor, Robert Himelblau, said that the decision is not appealable.  I knew that is not correct, so I clarified it with him by email.  His actual position is that he does not believe an appeal would be successful.

When the aggravating and mitigating factors are clear, and the question is the discretionary one of which predominates, I do not believe the judge can or should substitute his judgment for the jury's, at least as long as the jury's judgment is within the realm of reasonable disagreement.  It certainly is in this case.  Prior conviction of murder is such a powerful aggravating circumstance that the Supreme Court at one time held open the possibility it could justify a mandatory death penalty by itself without any weighing, even when it banned all other mandatory death penalties.  See Woodson v. North Carolina (1976), footnote 7.  The Court ultimately closed that door in Sumner v. Shuman (1987), but the fact that it was held open for a decade demonstrates how important this factor is.

This decision is wrong.  It ought to be reversible.


According to the story, Lydon was imprisoned for having murdered a child molester when he murdered his cellie -- another child molester. And, if true, Lydon was repeatedly victimized by a molester when he was a child.

Aside from my belief that a judge should not overturn a jury's death recommendation except under the most compelling of circumstances, I am not too offended (if offended at all) by the judge's decision in this case.

Your "aside" is my main point. California could vest the weighing decision in the judge. Nebraska has. But it chose to give the decision to the jury, and a jury's penalty verdict of LWOP cannot be overridden by the judge.

It should not be a case of "heads I win, tails we take it over." The judge's power to set aside the jury's decision should be limited to clearly wrong verdicts, not judgment calls within the range of reasonable disagreement.

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