The 9th Circuit ruled two days ago that the AZ law requiring a nexus between a mitigating factor and the crime committed for the determination of whether someone should die for his crime was unconstitutional.
Dissenting judges from that opinion ruled yesterday that when such a constitutional violation occurs, the matter does not need to go back down to a jury. Rather, the original reviewing court can independently review the mitigating factor. W.T.F. Either the jury should have heard the mitigating factor or not and either you have the right to have the jury to hear it or not. This is a person’s life! And his constitutional right to have a jury decide the fate of his life is at issue. Moral of the opinions: get Judge Fletcher, live. Get, Judge Bea and Kozinski die.
As an aside, the 9th Circuit held that it was ok that the AZ Supreme Court gave “little weight” to the mitigating factor at issue because the defendant failed to “present evidence” that that factor related to the crime, notwithstanding the fact that he has the right to have any mitigating factor weighed against an aggravating one. (Sidebar: why is that his burden?) As long as they “consider” the fact, no matter if they give it little weight because there is not showing it is related to the crime, it is all good. This is terrible. And I have no faith the Supremes will correct it.
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