Uttecht v. Brown, Case No. 05-413, 2 June 2008:

Justice Stevens, joined by Justices Souter, Ginsberg and Breyer, claimed in Dissent that the Court is “violating” its own prior cases, by allowing a trial judge to exclude a juror who expressed opposition to the death penalty, in a death penalty case. The Dissent made clear the belief by these four Justices that every possible step to prevent a jury from imposing

a penalty of death, should be taken.

Note this incredible statement in footnote 1 of the Dissent:

“The Court opens its opinion with a graphic description of the underlying facts of respondent’s crime, perhaps in an attempt to startle the reader or muster moral support for its decision. Given the legal question at issue, and the procedural posture of this case, the inclusion of such a description is, in my view, both irrelevant and unnecessary…. ‘It is not for this Court to decide whether [the Defendant] deserves to die.'”

Well, how much did Justice Kennedy say about the Defendant, for the majority in deciding the case? He wrote:

“Respondent Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California. Apprehended, Brown confessed to these crimes and pleaded guilty to the California offenses, for which he received a sentence of life imprisonment. The State of Washington, however, sought the death penalty and brought Brown to trial.”

The case concerned the dismissal of a single juror (Juror Z) based on the trial court’s examination of the attitudes of that juror about imposing the death penalty. Juror Z said he thought the penalty should be applied, when the defendant “might be released, and might reoffend.” In this very case, the jury’s only choice was to impose the death penalty or life without parole. He would never be released.

This fact reveals the hypocrisy of the four Justices in Dissent. They want to maintain the pretense that states may impose the death penalty for particularly bad crimes. But at the same time, these four want to force onto juries at least one juror who will vote against that penalty, so the penalty is available in theory, but in fact it disappears.

This also explains why these four Justices – Stevens, Souter, Ginsberg, and Breyer – object to a factual statement in the Opinion of what this Defendant did, which caused the imposition of the death penalty. These four Justices have contempt for the law, when it is established by legislators who disagree with these four about execution of heinous criminals. But they don’t want the public to see clearly what they are trying to do, with and to the Constitution, in order to oppose the death penalty.