Graham Henry is going to die.
Upon reflection, that's not really much of a statement. We're all going to die, after all.
It's perhaps more accurate to say that Henry's going to be killed. By the state.
That puts him into a much smaller class.
One might respond that Henry's presumably already in a much smaller class; namely, the class of people who've killed another person. It probably bears mention that this class is somewhat larger than one might initially conceive, given pervasive wars and the like. But I take the point. "Unlawful" killing. (For now, I'll leave to one side the fact that different eras tend to take very different approaches to the concept of lawful versus unlawful killing, and what conduct falls into which category. This reality might suggest that our contemporary thoughts on this topic might not be as self-evidently correct as we perhaps perceive. But let's leave that thought for another day.)
So Henry's in that small group of people who killed someone and who's going to in turn be killed for it. It's probably worth mention that it's unclear that Henry actually did kill anyone, since there's some reason to believe that his confederate actually pulled the trigger (or, more accurately here, stabbed the knife). I nonetheless again appreciate the response. Henry's nonetheless in the small group of people who took part in the taking of another human life.
(I'll mention again that this class of people is also not nearly as small as one might initially conceive. Think about it.)
Regardless. Since Henry's going to die at our hands, we take his appeals seriously. We both (generally) do and definitely should.
I could tell that Henry was going to die when I saw (1) that it was a death penalty case, (2) that there was no dissent, and (3) the panel. Maybe there's a case in which Judge Fisher, Tallman and Callahan were a panel that unanimously reversed a death penalty. But I doubt it.
(This is not unique to these particular three judges. There are lots of three judge Ninth Circuit panels about which I could say the same thing. Nor is it a one-way ratchet. There are also three judge death penalty cases where I could figure out that the defendant would prevail by composition of the panel. I merely note that this is one of those cases where you can almost certainly figure out the result merely by reading the tea leaves.)
Okay, so I know the result in advance. That doesn't necessarily mean the panel gets it right (or wrong). How's the analysis? Again, we want to take these things seriously.
I won't go through the entire thing. For some reason, I've been writing especially lengthy posts lately. I can already feel this one won't be an exception. But I'll at least try to not make it worse. So I'll just talk about one portion of the opinion.
It's a habeas case. Arizona. Roy Estes got stabbed to death in the desert. Estes gave Henry and a man named Foote a ride from Henderson, Nevada to Arizona. On that everyone agrees.
The question is whether Henry killed Estes, Foote killed Estes, or both of them killed him.
Henry says that during the ride he was "sleeping it off" in the trailer of Estes' truck when he heard Foote and Estes argue, and that when the truck stopped, Foote killed Estes -- to the total surprise of Henry, who wasn't at all involved. Arizona says that's not true; that it was either Henry or (more likely) both Henry and Foote that did the killing.
That's why we have a trial. At trial, the two sides presented their respective theories. The jury sentenced Henry to death.
There's some interesting parts of the opinion about the state allegedly deliberately fabricating evidence and some other stuff. But, again, I'm leaving that all to the side, and just focusing on one (short) portion of the opinion.
One of the other things that's undisputed that, at trial, it was unclear whether Estes could really hear (as he claimed) an argument between Foote and Estes when he was sitting in the back of the truck (i.e., in the camper shell) and they were in the cab. It's also undisputed -- at least on this procedural posture -- that during the trial, two of the jurors conducted an "experiment" on their own in which they drove down a similar gravel road in a similar car to try to ascertain whether Henry was telling the truth and could really hear something like that taking place in the front. Everyone agrees -- and it's crystal clear -- that's totally improper. Jurors can't do "experiments" like that. You've got to decide cases on the evidence at trial, not on stuff that's not introduced and that none of the parties knows about or has any opportunity to refute. Totally clear.
This seems like a pretty serious claim. Particularly since a juror testifies that not only did the jurors conduct this experiment, but shared the results with the jury in an attempt to convince them that Henry was lying and should be found guilty and sentenced to death. Should we be worried about that?
Not according to the Ninth Circuit. The panel rejects this claim incredibly concisely. Here's what it says. Helpfully labelling its arguments "First," "Second," "Third," and "Fourth," with a paragraph devoted to each.
The panel "first" says that many juror misconduct cases that result in reversal involve introduction of evidence that was expressly deemed inadmissible; e.g., prior convictions, inflammatory photographs, etc. Okay. I'll accept that as a descriptive matter. But so what? I bet lots of these cases also involved defendants without a "y" in their last name, or in states other than Arizona, or where the victim was shot rather than stabbed. That doesn't matter. Yes, juror misconduct can take a lot of forms. Maybe there are cases in which the jury was paid cash -- or plied with alcohol -- in return for returning a death sentence. I readily concede those would be even worse cases than this one. Who cares? That doesn't answer at all whether what transpired here was proper, or constitutes reversible error. To put it differently, that's an entirely descriptive, rather than normative, assertion. Moreover, even as a descriptive matter, there are reversals in lots of juror misconduct cases where the misconduct does not involve evidence that was expressly excluded or inflammatory. Again, that the claims here are in category X or Y don't matter. Imagine that the jury had collectively gone to the scene and reenacted the murder and concluded, yep, given the topography of the area, it'd have taken two people to drag someone up the hill and kill them, despite the fact that there was no evidence at trial at all about whether the area had hills, and convicted the defendant accordingly. That'd clearly be reversible error despite the fact that this evidence was not expressly excluded (rather than simply not introduced) or inflammatory. The argument that the claim here isn't the same as that raised in some other cases simply holds no water. It's either reversible error or it's not, and the fact that other cases on other facts have reversed for other errors is irrelevant.
The panel "second" says that "whether a person lying in the camper of a truck could hear an argument occurring in the cab fell within the common knowledge of most jurors." Seriously? I've been a juror. I've got some common knowledge. I have no freaking idea whether you can hear an argument in the front from the back. Indeed, to the extent I have an idea, based upon my own (quite limited) experience in a camper shell, I'd have thought you totally could hear an argument in the front -- the exact opposite of what the juror's "experiment" purportedly established. The argument that "everyone already knows that you can't hear an argument in the front when you're in the camper shell" just seems flatly, demonstrably wrong. Moreover, it's clearly not just me. If it was so totally obvious, why'd the two jurors feel the need to conduct the experiment in the first place, and/or share it with the others?! You violate your sworn oath as a juror so you can confirm what everyone already clearly knows? Seriously? If somone says something says something obvious, you don't go out and conduct an experiment to prove it. That the jurors felt the need to prove something -- to themselves and/or other jurors -- seems to me pretty strong (indeed, virtually irrefutable) evidence that it wasn't "within the common knowledge" of most jurors. A conclusion only supported by my preexisting belief that I'm not the only one who couldn't tell you off the top of my head -- without any evidence introduced at trial on the subject -- whether you can hear an argument from the cab when you're in the shell.
So the first argument the panel makes seems entirely irrelvant, and the second one seems totally wrong.
The "third" argument the panel makes, fortunately, isn't nearly as absurd. The opinion says that the illegal experiment probably didn't matter because Henry wasn't very credible anyway. This is an argument that I can potentially buy. Based largely on the fact that the trial judge thought Henry was "one of the most inherently incredible witnesses [the court] has ever seen testify in a courtroom." There's no prejudice if Henry's clearly a liar, and the jury already knows it.
But even though this is a potentially plausible story, it's belied to a large extent by what we already know. That at least some jurors didn't already think that Henry was a big, fat liar since they bothered to go out and conduct an illegal experiment to see if he was lying. You don't do that if you already know they're a liar. If I'm a juror and the defendant says "I was in the desert and lifted a 800 pound rock with a twig," and that's in addition to a ton of other things the defendant says about how he has x-ray vision and can predict the future, I don't go out in the desert and try to lift the rock. That one bothers to investigate is darn good reason to believe that the result is not preordained and that credibility is still at issue. Moreover, each of the reasons the panel gives for finding Henry totally uncredible seem exceptionally weak to me. "He left the scene of a murder without reporting it to the police, provided false information to the police and agreed not to tell the police about a murder and then reneged on that agreement once it was advantageous for him to do so." Really? Innocent people who have just seen their friend suddenly kill someone could never possibly do that? Everyone would stay at the scene and turn in their friend? No one would simply hope the friend wouldn't get caught, and would only rat out their friend once they themselves were told they'd be charged with the murder? That you don't report a crime and provide a false i.d. to the police necessarily means that you're the murderer? All I'll say is that that's a very different vision of human nature than the one that I have, anyway.
The panel concludes with its "fourth" argument that the jury could have convicted Henry anyway "under a felony-murder or accomplice theory even if it believed Henry's story that he was in the camper." That's somewhat true, I guess. Yes, if Henry's in the camper shell, then gets woken up and starts helping to kill the victim, sure, he's guilty. But that's not what either side said went down. Was Henry was sleeping it off in the back (as he said) or was an active participant at the outset (as the state said) is a pretty relevant fact, no? Some of the jurors certainly thought so. So much so that two of them bothered to conduct a clearly improper experiment to try to figure out which version was the truth. Why do so if you're already going to convict someone on a felony murder theory anyway? Plus, isn't it exceedingly relevant to the appropriate sentence whether Henry's involved at the outset and/or the actual stabber, as opposed merely someone who drags a lifeless (or dying) body up a hill? You're telling me that couldn't possibly matter at all? The fact that a jury could have found Henry guilty even if we was sleeping it off in the back doesn't tell us much at all about whether it would have done so. That's the prejudice inquiry, and the panel's final argument doesn't address that dispositive point at all.
This is all a long-winded way of saying that the panel's analysis on this point seems incredibly weak. As well as doesn't exactly display the sort of incredibly serious, deliberate inquiry that one would hope and expect when we're dealing with whether someone lives or dies. Casual, specious arguments thrown out in one-sentence paragraphs -- which is what exists here -- is certainly not what I would hope for were my life the one at issue.
One final point. Whether or not you think the arguments above have merit, do you really think that every reasonable person would uniformly agree that the panel's arguments here are clearly right? That there's no legitimate ground for debate about whether the jurors' illegal experiments might have influenced the verdict? That the issues are simply not "debatable among jurists of reason?"
Because that's the standard. The panel denies even a certificate of appealability on this point. Because the answer's so crystal clear that no reasonably objective person could possibly disagree. You'd have to be, oh, I don't know, so academic nutjob from the southern portion of some fruity state to fail to get that this one's a total no-brainer. Someone absurd like that. No actual jurist could find the issue even subject to legitimate debate.
That's the panel's holding.
I guess I can sum up my quite-extended thoughts on that point fairly simply. I'm going to have to pretty clearly disagree about that.