Arizona asks court to approve Kafkaesque treatment of due-process claim from man on death row

During Tuesdays oral argument in Cruz v. Arizona, the justices considered whether a state procedural rule prevents John Cruz, who was sentenced to death, from obtaining relief on his federal due-process claim in state post-conviction. To answer this question, the court must determine if Arizona Rule of Criminal Procedure 32.1(g) provides an adequate and independent state-law ground for refusing to recognize Cruzs federal right. Rule 32.1(g) is a procedural mechanism that allows Arizona petitioners to challenge their conviction or sentence when there is a significant change in the law that would impact their case. The justices questions explored two main areas: state authority to limit post-conviction review; and Arizonas determination of a significant change in the law for 32.1(g) purposes.

As background, a Pima County jury convicted Cruz of capital murder in 2005. During his sentencing hearing, Cruz requested to inform the jury that if they spared him the death penalty, he would be ineligible for parole. In doing so, he referenced a 1994 Supreme Court case, Simmons v. South Carolina, which held that jurors must receive such information to rebut an inference that the defendant posed a danger in the future. The court held that such information was part of the defendants constitutional right to due process. However, in line with Arizonas view of Simmons, Cruzs trial judge refused his request. The jury returned a death sentence. Cruz unsuccessfully appealed his Simmons claim in state post-conviction proceedings. Then, in 2016, when the Supreme Court decided Lynch v. Arizona, instructing Arizona courts to apply Simmons, Cruz renewed his appeal. This time, he pointed to Rule 32.1(g), explaining that Lynch constituted a significant change in the law.

Justice Clarence Thomas posed the first question, asking Cruzs lawyer, Neal Katyal, whether there was even a federal issue for the court to decide given that Arizona was simply applying state procedural law. Although Katyal quickly addressed the issue, the question signaled Thomass inclination to rule against the petitioner. In a somewhat similar vein, Chief Justice John Roberts denied that Arizona was acting with any hostility in applying its procedural rule, and mused that Arizona was simply limiting post-conviction review, which was perfectly within the states purview. Justice Samuel Alito then interrupted Katyals response to the chief justice with a hypothetical. When Katyal pointed to a deficiency in Alitos speculative scenario, the justice interjected: I meant to make that part of my hypothetical too. Rather than clarify the issue before the court, the opening questions, including inquiries from Justice Neil Gorsuch, communicated the justices unwillingness to engage with the relatively straightforward facts of the case: the appropriateness of Arizona relying on a state law to prevent Cruz from seeking reversal of a death sentence that violates federal law.

Alito picked up on the chief justices musings, asking whether there was anything wrong with a state limiting its post-conviction review process. Katyal agreed that it was acceptable for states to limit post-conviction, but that once the state creates a forum for such review, it must do so even-handedly and with predictability and notice to defendants. Arizonas interpretation of Rule 32.1(g) fails to do so, Katyal said. Before his allotted time concluded, Justice Sonia Sotomayor invited Katyal to address why the views reflected in her more conservative colleagues questions were wrong. The prompt enabled Katyal to highlight that Arizonas interpretation of Rule 32.1(g) in Cruzs case was novel, which Supreme Court precedent specifically prohibits.   

Following brief opening remarks from Arizonas attorney, Joseph Kanefield, Thomas again asked the first question. He wanted to know whether Arizona would consider the holding in Lynch a significant change if the Arizona Supreme Court had decided it. When Kanefield quickly and confidently responded no, despite conceding that he had no examples to support his answer, Justice Ketanji Brown Jackson interjected, forcing counsel to backtrack. Kanefield tried to distinguish what seemed, by any measure, a change in the law between Arizonas treatment of Simmons after Lynch, as not constituting a transformative event. Justice Elena Kagan wasnt having any of it. Maybe Im just being simple-minded about this, she said, but at point A, Simmons was not operative in Arizona, and in point B, Simmons was operative in [Arizona]. When Kanefield again tried to downplay the degree to which the law changed, Kagan chimed in with plain language: The right is not there to be invoked. Now the right is there to be invoked Thats as big a change of the law that there is.

The three liberal justices — Sotomayor, Kagan, and Jackson — appeared squarely on board with Cruzs arguments. When Sotomayor asked for one example of a time in which the U.S. Supreme Court or the Arizona high court overruled its precedent (which would constitute a significant change in the law), and Arizona declined to apply Rule 32.1(g), Kanefield could not produce one. At another point, Kagan quipped that Kafka would have loved Arizonas treatment of Cruzs federal claim, which the state has batted down no matter how and when he raised it.

Comments from Justices Brett Kavanaugh and Amy Coney Barrett seemed to indicate that they too may be receptive to Cruzs arguments. Barrett described Kanefields efforts to downplay the significance of the change in the law as kind of artificial and hair splitting. Toward the end of argument, Kavanaugh noted that other states had declined to file friend-of-the-court briefs in support of Arizonas position.

Regarding other states, Jackson voiced concern about what a decision for Arizona could communicate: It [would give] other states a roadmap for defying this courts criminal law decisions. When Kanefield attempted to assuage Jacksons fears, Kagan clapped back. She pointed to a shock[ing] footnote in Arizonas brief, stating that the State maintains that Lynch was wrongly decided. Given the footnote, Kagan accused Arizona of thumbing [its] nose at the court. Alito attempted to salvage Arizonas arguments, summarizing them in a comment, rather than a question. After a brief rebuttal from Katyal, the chief justice thanked the lawyers.   

If Cruz prevails, Arizona would be required to apply Simmons (via Lynch) to his case and to the cases of approximately 30 other death-sentenced petitioners in Arizona. Applying Simmons would likely require Arizona to grant each of them a new sentencing hearing in which jurors would learn about their parole-ineligibility. However, a victory for Cruz means garnering support from at least two of the conservative justices, which is by no means a given. Regardless of the outcome, the courts decision will likely adhere to the narrow facts of Cruzs case.