The idea of attempting to bring about closure occurred during oral arguments regarding the death penalty sentence imposed against Danny Lee Jones, who was found guilty of murder in the 1992 attacks on a friend, Robert Weaver, and the friend's 7-year-old daughter, Tisha Weaver, after using alcohol and methamphetamine.
Early in Wednesday's arguments, Arizona Deputy Solicitor General Jason D. Lewis defended the state's request that the high court reverse a ruling of the Ninth Circuit, which deemed Jones' trial counsel "constitutionally ineffective," and order an end to his efforts to escape execution.
If the Supreme Court disagrees with the Ninth Circuit, it would ordinarily vacate the ruling and remand for reconsideration. But the case's duration and roller-coaster route — including Jones' triumph in an earlier Ninth Circuit ruling that the high court vacated and remanded — now warrant a different outcome, Lewis said Wednesday.
"I think concepts of finality would dictate that the circuit court has had this case for so long, and has spent so much time granting relief on certain issues, reserving other ones, and then having it sent back continuously — it has to end at some point," the deputy solicitor general said.
That assertion came in response to questioning by Justice Sonia Sotomayor, who skeptically replied, "That's nice, but we're not fact-finders, and we generally don't weigh evidence. There's thousands of pages in this record."
Later in the arguments, however, Justice Neil Gorsuch observed that "this case has been lingering for decades, and that we've already vacated and remanded this case once." He suggested it might be appropriate for the justices to weigh aggravating and mitigating factors in accordance with Strickland v. Washington
, where the high court in 1984 detailed standards for death penalty challenges alleging ineffective counsel."Wouldn't there be some value to everybody to have some finality in this case, and just have us do the Strickland weighing in the first instance?" Justice Gorsuch asked Bryan Cave Leighton Paisner LLP partner Jean-Claude André, counsel for Jones.
"I think that the typical procedure is to send it back to the lower court, but if this court wants to do that, you have the record, you have the law," André replied. "You could do that reweighing if you think the Ninth Circuit was insufficient."
In Jones' case, the weighing would determine if there's "a reasonable probability" that mitigating factors — such as the lasting trauma of extensive abuse and head injuries during his childhood — would overcome aggravating factors, such as the finding that he committed killings "in an especially heinous or depraved manner." When Jones carried out those killings, he also attacked Weaver's grandmother, Katherine Gumina; she died of her injuries after a 17-month coma, but the state didn't alter its indictment accordingly, and Jones was only convicted of attempted murder.
Jones isn't challenging any of his convictions. But he says poor lawyering led to sentencing prior to a proper accounting of mitigating mental health evidence, giving the sentencing judge an incomplete understanding of the emotional and physical agony pervading his formative years.
To varying degrees, the high court's three left-leaning justices on Wednesday sounded receptive to the idea that Jones' excruciating upbringing, plus the permanent harm to his mental health, might be enough to spare him from execution.
Justice Sotomayor, for instance, faulted the district judge who ruled against Jones — and whom the Ninth Circuit reversed — for seemingly demanding a crystal-clear "nexus between the injury and the crime." Justice Ketanji Brown Jackson also dinged the district judge, saying on Wednesday that the judge was "screening the mitigating evidence" based on its perceived credibility, resulting in "a smaller corpus of mitigating evidence."
The high court's third liberal, Justice Elena Kagan, echoed those critiques, at one point saying, "The district court misunderstood its role." But Justice Kagan also knocked the Ninth Circuit's opinion, proclaiming that it "completely ignores all the aggravating evidence, which was substantial in this case."
André pushed back on that characterization, arguing that the appeals court's opinion used "brutal language" to describe aggravating factors and "didn't shy away from the underlying facts of these murders."
"I wish the Ninth Circuit had said more on this particular part of its analysis, because it is the thinnest," the BCLP attorney conceded. "But I think it's still enough."
Several of the court's six right-leaning justices, however, expressed doubt that post-conviction revelations about the extent and effects of Jones' youthful suffering would outweigh the brutality of his crimes.
Justice Samuel A. Alito Jr., for one, used a hypothetical defendant who is "sort of like Hannibal Lecter" to challenge the contention — expressed during briefing by Jones and supportive amici — that mitigation can overcome "powerful aggravation evidence."
"You've got a defendant who has kidnapped and hideously tortured 25 children, and sent messages to the media saying, 'I love to kill, and I'll always kill if I have the chance.' You've got the most horrible aggravating evidence that you possibly can have," Justice Alito said as he outlined the hypothetical and sounded increasingly incredulous. "Then you say that all that's necessary in order to get resentenced is for the defendant to come up with evidence that a reasonable sentencer might deem relevant to the defendant's moral capability? That's your argument?"
Justice Brett Kavanaugh also voiced skepticism, noting that the original sentencing proceedings looked at a smaller set of similar "mitigators that dealt with the substance abuse, with the childhood, with the treatment, the abuse problem."
Among the other conservatives, Chief Justice John G. Roberts Jr. and Clarence Thomas didn't say much, but their few words lacked any support for the Ninth Circuit's ruling. Justice Amy Coney Barrett also had little to say, but she did signal agreement with Justice Kagan's criticism of the Ninth Circuit, and she asked, "Why wouldn't a vacate and remand be appropriate?"
André responded with another defense of the appeals court, but he also seemed content to accept a remand rather than a definitive decision against Jones.
"If this court finds that the Ninth Circuit's weighing … is insufficient, I think that is the proper recourse, to send it back to the Ninth Circuit," André said.
A decision in the case is expected by late June.
The state is represented by the Arizona Office of the Attorney General.
Jones is represented by Bryan Cave Leighton Paisner LLP and the Federal Public Defender's Office for the District of Arizona.
The case is Thornell v. Jones, case number 22-982, before the Supreme Court of the United States.
--Editing by Michael Watanabe.
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