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Argument analysis: The record’s the thing — unfortunately


The Supreme Court, supposedly, is an appeals court set up to decide issues of law, and should not have to spend its hours — no, its days — getting familiar with a factual record that may run into many volumes.  But if the Court is to decide the case it heard on Monday, Brumfield v. Cain, the Justices and their clerks may need to start right away digging very deeply into at least twenty volumes of a record compiled in a state court.

The legal issue the Court said it would decide is simple enough.  But, when that issue came up for argument, eight Justices who took an active part and two lawyers went back and forth for an hour, sometimes impatiently, trying to figure out just what happened in this Louisiana murder case that could lead to the execution of a man found by a federal judge to be mentally disabled — a category that normally would exempt him from the death penalty.

Justice Antonin Scalia protested that he had not even read the record so far before the Court in this case, and added that he doubted that the Court would do so in cases like this one — cases testing how to apply the Court’s 2002 decision in Atkins v. Virginia barring the execution of mentally disabled individuals convicted of murder.

In Atkins, the Court said it would leave it to the states to decide who fits into that category, and how to decide that question.  But if this new Louisiana case is typical, the Court will have no end of difficulty reviewing the adequacy and workability of what each state does about those issues.

The Court granted today’s case to decide a perhaps misleadingly simple question: does a state have a constitutional duty to provide a separate hearing to decide the mental disability question, or is it sufficient to rely on what came out in a state court hearing that was confined simply to the issue of imposing, or not, a death sentence?

But at one point in the argument, Chief Justice John G. Roberts, Jr., openly wondered whether there was any broader legal question before the Court, or whether the Court was simply reviewing disputed facts in a perhaps isolated case.  Justice Samuel A. Alito, Jr., wanted to know the same thing.

The argument was fast-paced, so much so that both lawyers seemed to waver in trying to keep their side of the case together, sometimes not even able to finish sentences before having to turn to react to another Justice approaching from a sharply different angle.

A good deal of time in the argument was spent on just what standard the state courts of Louisiana use to decide what kind of evidence must be offered to show mental disability, or even what kind of evidence must be offered to get a hearing on that question.   The hint of a consensus on that point — there must be “some evidence” — quickly dissolved in layers of complexity about how the state court had gone about the task of assessing that evidence at a time before the Atkins decision even existed.

The Court’s apparent frustration with the case might suggest that the way out would be to simply cast it aside as one that they should not have taken on in the first place.  But that would leave intact a federal appeals court decision that would simply lead to the execution of Kevan Brumfield on the basis of a state court record made even before the Court had attempted to create a new exemption to capital punishment.

Brumfield’s lawyer, Washington attorney Michael B. DeSanctis, closed the argument on a note that suggested he feared the Court would, indeed, just throw up its hands and back out.  His client, he summed up, has been found to have an IQ as low as fifty-four, has been found by a federal judge to be actually mentally disabled, and he has the Atkins precedent on his side, yet the Court may wind up letting him be put to death without a full chance to show his mental state.

Louisiana’s lawyer, Premila Burns, an assistant district attorney in Baton Rouge, also left the impression that the Court needed to decide this case on the merits to head off a “floodgate” of post-Atkins cases requiring the Court to delve back into pre-Atkins proceedings, a laborious case-by-case process that the Court would no doubt want to avoid.

Along the way toward those concluding remarks by the two counsel, the Court had difficulty getting fully responsive answers from either of them.

With DeSanctis, for example, the Justices had problems figuring out just what he wanted for his client, since he had said early on that he was not asking for any “bright-line rule” on what procedures a state might have a duty to adopt on the disability question.

And, with Burns, the members of the Court had difficulty getting a firm answer on just what had happened to a doctor’s report that was favorable to Brumfield’s claim but might not even be recorded as a formal part of the case.  She insisted that the state court judge had taken it into account and it was part of the evidence, but she struggled to “educate the Court” (as she put it) on how Louisiana’s rules of evidence actually work.

The Court, of course, is not at all happy when it spends time and effort on a case and then finds that it can’t decide it in a meaningful way.  But cases like Kevan Brumfield’s may not provide it with many options, especially if it is unwilling to spend the time to make its own analysis of what happened before a case got to them.


Recommended Citation: Lyle Denniston, Argument analysis: The record’s the thing — unfortunately, SCOTUSblog (Mar. 30, 2015, 12:35 PM),