In 2007, Cory Voss was found dead in his pick-up truck outside a Virginia credit union.  The thirty-year-old naval officer and father of two young children had been shot five times at close range.  Prosecutors charged Voss’s wife, Cat, and her boyfriend, Michael Draven, with offering David Runyon, a former police officer and member of the U.S. Army, $20,000 to kill Voss so that they could collect on a $500,000 insurance policy.  Cat Voss pleaded guilty and received a life sentence; although Draven went to trial, he too received a life sentence because he cooperated with police.  But a federal jury recommended a death sentence for Runyon on two of the three counts that made him eligible for the death penalty, and the U.S. Court of Appeals for the Fourth Circuit upheld that sentence. 

Runyon is now asking the Supreme Court to review the Fourth Circuit’s ruling, in a petition that raises questions about the standard of review for errors.  But the case is also noteworthy for what the federal government has (or, more specifically has not) done with the case at the Court:  although Runyon’s petition was filed eleven months ago, the government has not yet filed a response but has instead taken a whopping eleven extensions of time.

During the penalty phase of Runyon’s 2009 trial, both sides introduced, as the Fourth Circuit observed, an “abundance of evidence.”  As part of its case, the federal government played for jurors a videotape of Runyon’s interrogation, during which police officers tried to convince him to cooperate with them.  Among other things, the video showed one detective invoking Runyon’s Asian heritage and “honor” as a reason for him to “do the right thing”; later on, the same detective responded to Runyon’s statement that he is a Christian by suggesting that it was “time to repent.”  During closing arguments, the prosecutor urged the jury (again, among other things) to “do your duty and impose a sentence of death” and to “send a message to the community” with a death sentence.

On appeal, the Fourth Circuit agreed with Runyon that, in light of its “particular references to ethnicity and religion,” the trial court should not have allowed the jury to see the video.  But it nonetheless affirmed Runyon’s death sentence, concluding that the admission of the video was ultimately harmless.  “What ultimately drove the jury’s decision,” it reasoned, “was not some video but the overpowering evidence of Runyon’s guilt, his pivotal role in the crime, and the exceptionally callous nature of his conduct.”  “The aggravating factors found by the jury,” it continued, “provid[ed] an abundant basis for the verdict” of death.

In his petition for certiorari, Runyon asserts that the language of the lower court’s ruling “necessarily implied” that “no reasonable jury would have reached a different verdict had the videotape been excluded.”  But rather than looking at what a hypothetical jury would have done, he contends, the Fourth Circuit should have looked at whether the jury in his case might have reached a different verdict without the videotape.  Supreme Court review is warranted, he argues, because the courts of appeals are divided on whether the “actual jury” or “hypothetical jury” approach to harmless error review is appropriate, and because he would have prevailed had the Fourth Circuit used the “actual jury” approach.  Moreover, he maintains, the Supreme Court’s case law on this question is unsettled:  although the Court in Sullivan v. Louisiana indicated that harmless error review “looks to the basis . . . on which the jury actually rested its verdict,” six years later – in a case called Neder v. United States – it suggested that the “hypothetical jury” approach was in fact the correct one.

Runyon’s petition also raises a second question:  what standard of review should courts use to determine whether a verdict should be reversed because of the combined effect of several errors – known as cumulative error – even if each of those errors, standing alone, was harmless?  In Runyon’s case, the Fourth Circuit either assumed without deciding or agreed with Runyon that several aspects of the government’s closing arguments were improper, but it held that even the cumulative effect of these errors did not warrant reversal because “[t]he proceeding below adhered to fundamental fairness.  There is overwhelming evidence of guilt in the record and any possible error did not play a role in the outcome of” the trial.    Other circuits, he contend, would have looked at whether the government had shown, beyond a reasonable doubt, that the combined effect of the errors had no effect on the verdict.

Runyon filed his petition for certiorari on August 21, 2013.  Under the Court’s rules, the government’s response would have originally been due on September 23, 2013.  However, the due date to file a response to a petition is not jurisdictional:  barring unusual circumstances, the Clerk’s Office will almost always grant a respondent an initial thirty-day extension of time in which to file a brief in opposition, and the federal government almost always takes a first extension.  A second extension is also not especially unusual, although such an extension normally requires consent from the petitioner.

Eleven extensions, however, are highly unusual.  This is particularly true in a criminal case:  Runyon’s death sentence has been imposed, so the government can’t simply agree to a new sentence as part of a settlement of the case.  (By contrast, the parties to a civil case could agree to delay the filing of a brief in opposition while they negotiate a settlement.)  On the other hand, it’s not hard to see why a death row inmate and his lawyers might repeatedly agree to allow the government to delay filing its brief.  Runyon is only challenging his death sentence, not his guilt, so even if he were eventually to prevail in the Supreme Court, the best he could probably hope for would be a new sentence of life in prison.  And because his case is still on direct appeal, there is no real prospect that the government will seek to set an execution date before his appeals are resolved.  But perhaps even more significantly, a delay can only improve Runyon’s chances for Supreme Court review by allowing additional courts of appeals to weigh in on the questions presented by his petition, perhaps solidifying the divisions among the courts of appeals that he depicts.

But why would the government want such a significant delay in Runyon’s case?  This is harder to explain.  The Solicitor General has had a significant period of time to prepare a response.  In these circumstances, a long delay by the government frequently indicates either that a substantial policy debate is underway, or that the parties are awaiting the result of some other proceeding.  The latter does not seem to be the case here.  The government’s brief, whenever it is filed, may shed more light on the reasons for the delay.  And we may finally see that brief soon:  although each of the government’s first ten extensions of time postponed the due date by approximately a month, its most recent extension (granted on Monday of this week) was for just two weeks (to August 1), which at least suggests that the government may be close to actually filing its brief.

Posted in Runyon v. U.S., Cases in the Pipeline, Featured

Recommended Citation: Amy Howe, Federal government delays response in capital case, SCOTUSblog (Jul. 23, 2014, 9:31 AM), http://www.scotusblog.com/2014/07/federal-government-delays-response-in-capital-case/