WASHINGTON — The U.S. Supreme Court appeared split this week as justices considered an appeal from James McKinney, who has been on death row in Arizona since 1993.
McKinney was convicted of two murders that occurred during burglaries he committed with his half-brother in Maricopa County in 1991. McKinney was 23 years old at the time. His appeals have been winding their way through the courts for almost three decades.
The U.S. Supreme Court’s ruling in his case — expected next year — will determine whether his death sentence stands or whether lower courts have to reconsider his sentencing. More broadly, a ruling that sides with McKinney could force Arizona and other states to change their procedures for re-sentencing.
Fifteen states – Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee and Utah – sided with Arizona in the case. Ruling in McKinney’s favor, they warned in a brief to the justices, would “impose a substantial and heavy burden on the States to re-litigate long-since final cases that faithfully applied then-existing law.”
McKinney’s attorneys argue that his sentencing didn’t properly account for evidence that he suffered from post-traumatic stress disorder (PTSD) as the result of abuse he experienced as a child. The judge who sentenced McKinney accepted the diagnosis, but didn’t consider it as part of the sentencing because it wasn’t considered “causally connected” to the crime. The Arizona Supreme Court upheld his death sentence.
U.S. 9th Circuit Court of Appeals ruled in 2015 that the sentencing judge and the Arizona Supreme Court had failed to properly consider his PTSD, and Arizona asked the state Supreme Court to review the case. McKinney’s attorneys argued, however, that court rulings issued since his sentencing required that juries, not judges, must be the ones to consider evidence before imposing the death penalty.
But the Arizona Supreme Court said those rulings were issued after McKinney’s conviction, and it upheld the death sentence.
McKinney’s attorneys appealed to the U.S. Supreme Court, urging the justices to find that the Arizona Supreme Court failed to apply current law and to grant McKinney re-sentencing by a jury. If they don’t do that, the attorneys argue, the case should go back to a trial court for re-sentencing.
“James McKinney seeks nothing more than any other defendant facing the ultimate penalty: The opportunity to present mitigating evidence in the trial court, and to have that evidence considered by the sentencer, before being put to death,” his lawyers wrote in a brief to the U.S. Supreme Court.
But Arizona, led by Attorney General Mark Brnovich, disagrees.
The state argued in its brief that the record offers “no reason for the Court to discard its existing path in order to set out sweeping new approaches in two different areas of criminal law, both of which go well beyond the death penalty context.”
And the state warned that automatic trial-court re-sentencing would “fail to acknowledge the damage to the interests of justice that comes with sending a category of long-ago-final convictions back for re-sentencing no matter the possibility of remedying any constitutional error through a process short of full trial-court proceedings.”
Conservative justices on the court appeared sympathetic on Wednesday to the arguments made by Arizona Solicitor General O.H. Skinner.
Justice Samuel Alito suggested that McKinney was asking for a windfall.
“Indeed, maybe a double windfall,” he said. McKinney would be getting retroactive application of a court ruling that “is not retroactively applicable to anybody else,” he said.
Justice Brett Kavanaugh questioned why McKinney’s attorneys were seeking “a new jury sentencing 28 years after the murders and after the victims’ families have been through this for three decades.”
Neal Katyal, the former acting U.S. solicitor general who represented McKinney in court, told Kavanaugh this case isn’t about “some technical violation here or something. We’re talking about the heart of what capital punishment sentencing is all about, the weighing of mitigating and aggravating circumstances.”
Several of the liberal justices on the bench appeared more willing to side with McKinney.
Justice Sonia Sotomayor pressed Skinner on how a court can modify a judgment without reopening the case. “You have to open it to modify it, don’t you? You have to undo it to change it. I’ve never heard of changing a judgment by not undoing it first.”
Justice Ruth Bader Ginsburg asked a similar question: “General Skinner, the 9th Circuit found that the Arizona Supreme Court erred on direct review of the trial court judgment,” she said. “If they made an error on direct review, how can that error be cured without reopening the direct review?”
The justices will issue a ruling in the case, McKinney v. Arizona, before the end of their term next summer.