Ayers v. Belmontes - Oral Argument - October 03, 2006

Ayers v. Belmontes

Media for Ayers v. Belmontes

Audio Transcription for Opinion Announcement - November 13, 2006 in Ayers v. Belmontes

Audio Transcription for Oral Argument - October 03, 2006 in Ayers v. Belmontes

John G. Roberts, Jr.:

We'll hear argument next in Ayers versus Belmontes.

Mr. Johnson.

Mark A. Johnson:

Mr. Chief Justice, and may it please the Court:

This case concerns the constitutional sufficiency of California's catchall factor (k) instruction, which was given in the penalty-phase portion of California capital cases, and which directed the jurors to consider any other circumstance that extenuates the gravity of the crime, even though it is not a legal excuse for the crime.

In this case, the Ninth Circuit Court of Appeals held that this instruction violates the Eighth Amendment because it allegedly misled the jurors to believe they could not consider so-called forward-looking evidence that did not relate directly to the defendant's actual culpability for the crime itself.

In the State's view, the Ninth Circuit's conclusion is fundamentally flawed, because it rests on an illusory distinction between different forms of character evidence in a way that is inconsistent with this Court's prior decisions in California... or Boyde versus California and Brown versus Payton.

In Boyde, this Court addressed, and rejected, a virtually identical challenge to the factor (k), and concluded that this instruction did, in fact, allow jurors to consider non-crime-related evidence; specifically, it allowed the jurors to consider evidence of the defendant's background and character.

There was nothing in the Boyde decision to support the Ninth Circuit's distinction between different forms of character evidence.

In fact, Boyde implicitly acknowledged that the factor (k) would, in fact, be understood to encompass Belmontes' good character evidence, in this case, because, for all practical purposes, there is no meaningful distinction between the nature of the background and character offered in Boyde and the nature of the background--

John Paul Stevens:

Mr. Johnson, would you comment on the footnote on the... on the... drawing the distinction with regard to the dance contest that the defendant won in that case, between... it's over here; I'm asking the question... between facts that occurred before the crime and facts that might have occurred after.

Mark A. Johnson:

--Yes, Your Honor.

In footnote 5, this Court addressed a contention, raised for the first time in argument, that Boyde's evidence might be admissible under Skipper versus South Carolina, and this Court distinguished Boyde from Skipper, for a couple of reasons.

First, as the... as Your Honor pointed out, the evidence in this case related to good-character evidence, events that occurred before the crime itself, unlike in Skipper, which dealt with post-crime events.

The Court also pointed out that the evidence in Boyde... his dancing achievement, his good character evidence in that case... was not offered for the specific inference that the evidence in Skipper was offered.

The Court, in footnote 5... and in the opinion, in general, in Boyde... nonetheless found that this evidence did, in fact, constitute good... character evidence of the... of the defendant's present good character, because it showed that his crime was an aberration from otherwise good character.

Or, as Justice Marshall put it in his dissenting opinion, that Boyde had redeeming qualities, which is a decidedly forward-looking consideration.

And, as I was saying, the evidence in this case, and in Boyde--

Antonin Scalia:

It doesn't have to be forward... looking, does it?

I mean, I thought we've said

"so long as it can be taken into account in any manner. "

whether backward-looking or forward-looking.

Haven't we said that, explicitly?

Mark A. Johnson:

--Yes Your Honor.

The... and, in fact, the Court has, in Franklin versus Linite, said that they have not distinguished between different forms of character evidence.

And I understand that, in the past, we've always discussed background and character evidence as sort of the same thing.

In this case, however, the Ninth Circuit's conclusion does, in fact, rest on a distinction between different forms of backward-looking and forward-looking character--

Anthony M. Kennedy:

Well it was--

Mark A. Johnson:


Anthony M. Kennedy:

--it was addressing itself to the fact... to the words of the factor (k) instruction.

How does post-crime prison conduct reduce the seriousness of a previous crime?