Residual Doubt in Capital Sentencing

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Residual Doubt in Capital Sentencing

• By Lindsay Runnels

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What is Residual Doubt?

• Residual doubt, as defined by the 5th Circuit
• The fact that jurors have determined guilt
  beyond a reasonable doubt does not necessarily
  mean that no juror entertained any doubt
  whatsoever. There may be no reasonable
  doubt--and yet some genuine doubt exists. It may
  reflect a mere possibility it may be the whimsy
  of one juror or several. Yet this doubt--this
  absence of absolute certainty--can be real.
• The Supreme Court, academic commentators,
  experts, and jury polls indicate that even when
  jurors are convinced of defendants guilt beyond
  a reasonable doubt, that they may have some doubt
  remaining.

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Why Is This Important?

• One in every 20 inmates on death row will
  eventually be exonerated.
• As of September 2008, 113 death row inmates have
  been exonerated since 1973
• 351 total inmates have been exonerated since 1989
• Comprehensive study by the University of Michigan
  estimates that more than 15 of inmates in the
  U.S. prison population are innocent (300,000
  inmates)
• Are we confident that every innocent death row
  inmate is exonerated before execution?

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Death Is Different

• The U.S. Supreme Court has repeatedly held that
  the defense of capital defendants requires more.
  
• Wiggins v. Smith (2003) Duty to investigate
  mitigating circumstances and present to the jury.
• Lockett v. Ohio (1988) Individualized sentencing
  for capital defendants. Court held
  constitutionally relevant as mitigating factors
  any aspect of defendants character, or record,
  and any circumstance of the offense.

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So Whats The Problem?

• Oregon v. Guzek (2006)
• State of Confusion. The Court dodged the ultimate
  question.Does the Eighth mandate the
  instruction?
• Franklin v. Lynaugh (1988)
• A Defendant is not constitutionally entitled to a
  residual doubt instruction, left it to the
  states.
• Lockhart v. McCree (1986)
• Majority opinion we recognize that jurors may
  have residual doubts that would bend them to vote
  against death.

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Federal Death Penalty Act

• 18 U.S.C.A. 3592
• List the Aggravating and Mitigating Factors that
  can be considered in a death penalty case.
• Residual Doubt is not listed as a statutory
  factor, or as a non-statutory factor.
• or any relevant circumstance of the crime, the
  defendants character, or record.
• Some federal jurisdictions allow residual doubt
  instructions and evidence, some do not.

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Missouri Statutory Law

• R.S.Mo. 565.032
• (3) any mitigating or aggravating circumstance
  otherwise authorized by law and supported by
  evidence and requested by a party including any
  aspect of the defendants characterand all
  evidence received during the first phase of the
  trial.

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State of Confusion

• Jones v. State (Mo. 1990)
• Defense Counsel was not ineffective for failing
  to request a residual doubt jury instruction.
• White v. Roper (W.D. 2004)
• A jury is never required to impose death, it may
  be persuaded by mercy, compassion, residual
  doubt, or a host of other factors, and the State
  may not preclude a jury from considering
  information relevant to those factors.
• U.S. V. Eye (W.D. 2008)
• Order--denying defendants request to instruct
  the jury that residual doubt is a mitigating
  factor.

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Suggested Approaches by Academia and Experts

• Implement the Beyond All Doubt Standard for the
  penalty phase of a capital trial. Model Penal
  Code 2000 recommended modification.
• Standard Residual Doubt Jury Instruction where
  the evidence warrants
• Add Residual Doubt as a valid mitigating factor
  in the Federal Death Penalty Act to give guidance
  to the federal circuits.
• Clarify Lockett v. Ohio constitutionally
  relevant mitigating factors. Complies with
  Chief Justice Burgers majority opinion.

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Justice Thurgood Marshall

• One of the most fearful aspects of the death
  penalty is finality. There is simply no
  possibility of correcting a mistake. The horror
  of sending an innocent defendant to death is
  qualitatively different from the horror of
  falsely imprisoning the defendant. The belief
  that such an ultimate and final penalty is
  inappropriate where there are doubts as to guilt,
  even if they do not rise to the level necessary
  for acquittal, is a feeling that stems from
  common sense and fundamental notions of justice.
• Heiney v. Florida (1984) (Marshall, J.,
  dissenting from denial of certiorari)