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People v. Zamudio (Cal. Supreme Court - April 21, 2008)

By Shaun Martin

When you read all the death penalty cases in California, there are some basic, fairly universal themes. Most of the time, guilt is fairly obvious, and the evidence is overwhelming. And you have some incredibly bad facts about the defendant that, when combined with his obvious guilt, makes you appreciate (even if you don't agree) why the jury sentenced him to death.

Not here.

Yes, it's the murder of an elderly couple, and that's a terrible thing. But unless we're going to kill everyone who commits that offense -- and we don't -- I cannot figure out what distinguishes this case from the others. It's not a particularly outrageous example of the offense; no torture or the random killing of strangers. There's no massive criminal history or a lifetime of violence or even depravity. And, yes, do I think it's likely that the defendant did it, sure, but I gotta say that the evidence of guilt is pretty darn scant, and a fair piece less than you find in most of these cases.

One of the things that the Supreme Court occasionally talks about in death penalty cases is how you're supposed to be able to rationally distinguish those who die from those who live. I can't do that here, and it's not for a lack of trying. It just seems to me that the jury here was hard core: that it thought that someone who killed an elderly couple whom he knew (and was previously very nice towards) for meaningless reasons always deserves to die. That may or may not be correct as a moral matter, but I don't think it helps to distinguish this case from similar ones in which the defendant was sentenced to life without the possibility of parole.

I've read hundreds of death penalty cases, and none of them have ever struck me as highlighting the inequity argument as much as this one. Which is especially interesting given the none-too-overpowering evidence of guilt that's also present here. Although I have always intellectually understood the "lingering doubt" instruction (i.e., that there may still be some doubt about the defendant's guilt even though you're morally certain that he committed the offense), I've never actually felt it. Or even come close. And I'm not sure that I feel it here -- I find it very hard to say that I'm morally confident that a defendant's guilty and yet square that with some lingering doubt, since presumably that would mean that I'm not sure "beyond a reasonable doubt" -- and yet I think this one at least comes close.

So this one generated some unique feelings, at least for me. Which may well be idiosyncratic. But this one didn't sit well with me. I have no substantive objections to Justice Chin's legal analysis for the unanimous Court. But there's still something here that makes me uneasy.

Full post as published by California Appellate Report on April 21, 2008 (boomark / email).