Justice Liu authors this opinion, in which -- in 77 pages -- the California Supreme Court unanimously affirms Mr. McDaniel's conviction and death sentence.
But then Justice Liu also writes a concurrence to his own opinion -- an additional 30 pages -- in which he explains that he thinks the California's death penalty might have serious Apprendi problems.
That argument wasn't made in the present case. But Justice Liu's opinion, "the 20-year arc of the high court’s Sixth Amendment jurisprudence raises serious questions about the constitutionality of California’s death penalty scheme." So "[g]iven the stakes for capital defendants, the prosecution, and the justice system, I urge this court, as well as other responsible officials sworn to uphold the Constitution, to revisit this issue at an appropriate time."
That's a call to "this court" (i.e., his colleagues) to go along with him in a future case. It's also a call for defendants sentenced to death (and their counsel) to make the argument in future cases; after all, Justice Liu's basically written your brief for you. And, as a backstop, it's a call to the Governor and Legislature to pick up the baton as well -- just in case the courts feel constrained by precedent and/or the United States Supreme Court.
