Yesterday, President Trump nominated Neil Gorsuch to the Supreme Court. In the coming weeks, we are certain to see his nomination come before the Senate Judiciary Committee and finally to the Senate floor. So I thought it might be helpful to find and try to summarize the reasoning behind some opinions authored by Judge Gorsuch on the 10th Circuit Court of Appeals.
Today’s case, Eizember v. Trammell, was a split decision on a criminal death penalty case. It was decided by a three-judge panel in September 2015, with Gorsuch writing for the court.
The defendant in this case, Scott Eizember, had gone on a crime spree that began with the killing of an elderly couple in Tulsa, Okla. He had broken into their home to spy on his ex-girlfriend across the street, seeking revenge against her for dropping a dime on him for another crime. When the couple returned home, he briefly held them hostage. Gorsuch summarized what happened as follows:
Mr. Eizember set the gun down. It was then Mr. Cantrell saw his opportunity. He grabbed the gun and fired. The shot hit Mr. Eizember in the hand—but also tragically struck and killed Mrs. Cantrell. In what followed, Mr. Eizember wrestled the gun away from Mr. Cantrell and proceeded to beat him with it until he fell unconscious. Then Mr. Eizember dragged the Cantrells’ bodies into the bathroom, where Mr. Cantrell was left to—and did—die.
For Mrs. Cantrell’s death, Eizember was charged under Oklahoma’s felony murder statute and got 150-year prison sentence. For Mr. Cantrell’s death, he got the death penalty. Eizember had also subsequently tried to kill his ex-girlfriend’s brother, shooting him twice, beat his ex-girlfriend’s mother, and then while hitchhiking on the run, carjacked and beat another couple.
He was eventually convicted in Oklahoma and sentenced to death for Mr. Cantrell’s murder. The jury chose death because it found that there had been two aggravated circumstances to the murder — “that Mr. Eizember knowingly created a great risk of death to more than one person and that the murder was especially heinous, atrocious, or cruel—and sentenced him to death.”
In his appeal to the 10th Circuit panel on which Gorsuch sat, Eizember argued that two jurors should have been excluded from the trial “because they were impermissibly biased in favor of the death penalty. On jury questionnaires, juror “D.B.” had answered a question about the death penalty: “I firmly believe if you take a life you should lose yours,” and “I have no reservations about seeing someone put to death so long as it has been proven the person is guilty, especially if they have taken the lives of others.”
Asked “what purpose” the death penalty serves, D.B. had written, “Keeps taxpayers from having to support a criminal for the remainder of their life.” In voir dire, D.B. had said she would “probably” consider the death penalty automatically if given the choice between it and a life sentence in a case where the defendant had been convicted of murder. When pressed, she said she would “have to try hard” to justify giving a lighter sentence than death in such a case.
The Oklahoma Court of Criminal Appeals had rejected Eizember’s appeal, citing other responses this juror had given on the questionnaire and in voir dire that indicated she could fairly “consider all three punishments” of death and life with or without parole. It made a similar ruling with respect to another juror whose answers Eizember considered prejudiced toward the death penalty.
Gorsuch’s opinion hinged mostly on the simple question of whether his court could second-guess the state court’s decision. Citing the federal Antiterrorism and Effective Death Penalty Act, as well as a standing Supreme Court precedent Uttecht v. Brown (2007) penned by Justice Anthony Kennedy, Gorsuch wrote that the 10th Circuit owed a duty of “double deference” to the trial court’s decisions to keep these jurors:
“one layer of deference because only the trial court is in a position to assess a prospective juror’s demeanor, and an “additional” layer of deference because of AEDPA’s “independent, high standard” for habeas review….Indeed, the [Supreme] Court stressed that where, as here, the record reveals a “lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion” on the issue of exclusion [of jurors]….
….Before us are an inconclusive factual record and a highly deferential legal standard: a combination that precludes us from forming the conviction necessary to deem the [Oklahoma Court of Criminal Appeals] decision an unreasonable application of federal law. When it comes to juror exclusion, the unavoidable fact is that the Supreme Court has left considerable room for trial court discretion, a discretion AEDPA only magnifies in the context of federal court review of state court decisions, and the resulting spectrum of permissible or reasonable judgment is large indeed.
The lone dissenting judge, Chief Judge Mary Beck Briscoe, argued that Oklahoma’s high court had applied the wrong legal standard to the case by asking whether juror D.B. was “irrevocably committed” to imposing the death penalty, and not whether her judgment was “substantially impaired” from her duties by bias toward the death penalty.
Gorsuch rebutted this with two main arguments. First, he pointed out that the criminal defendant in this case had failed to make this argument in any of the lower courts in six years of litigation on this case. He writes with what appears to be a mild rebuke:
[T]he dissent faults the [lower federal] district court for failing to address the question whether the OCCA applied a rule of law contrary to [Wainwright v.] Witt. The dissent also faults the State for failing to address the question on appeal….But it seems to us that the fact no one has ever addressed the argument the dissent wishes to press should be a clue. A clue that this just isn’t a case where the district court missed an issue presented to it or where the petitioner expressly sought to introduce a new issue on appeal and the State might have been expected to offer a response in its appellate briefing. A clue that this is a case instead where an appellate dissent seeks to devise a new ground for reversal for the petitioner that the petitioner has never pursued for himself in a great many filings over a great many years of litigation.
Gorsuch added (although the judge who joined in his opinion disagreed with this part) that this argument would fail on the merits anyway even if it had been raised. The state court, he wrote, seemed well aware of the proper standard for excluding jurors in death penalty cases, having cited the relevant Supreme Court precedent and used language almost identical to it.
The Supreme Court has repeatedly reminded us that “AEDPA’s requirements reflect a ‘presumption that state courts know and follow the law.'” This presumption demands that federal judges “afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Reading the OCCA’s opinion, it quickly becomes clear this is not such an extreme case. The OCCA cited Witt no fewer than five times. It began its discussion of the juror bias question by quoting Witt ‘s substantial impairment test and recognizing it as the “proper standard.” And in concluding its analysis of D.B.’s responses, the court expressly held that she “did not have such a strong bias towards the death penalty that the performance of her duties as juror would be prevented or substantially impaired”—language that tracks Witt almost verbatim.
This case probably isn’t one of the ones that will be discussed a lot at the confirmation hearings, but perhaps it gives a tiny window into Gorsuch’s writing and thinking. Citing a specific federal law (signed by Bill Clinton in 1996) that had been passed to avoid drawn-out federal death penalty litigation, and specific Supreme Court precedents about jury selection in death penalty cases, he argued that his federal court had to defer to the judgment of the state trial court. The only exceptions to this, he noted, were in “extreme” circumstances that he believed were not present here.
This may contrast with the many federal court cases that make the news, in which federal judges eagerly pounce and rationalize involvement in state court decisions they don’t like one way or another. Indeed, this could have been such a case, if someone besides Gorsuch had been there in his place.
Gorsuch even mildly rebuked a colleague (the 10th Circuit Chief Judge, no less) for trying to create a rationale for such interference. One might view this as an example of judicial restraint, allowing a state criminal sentence to be executed according to state law and the finding of a jury.
Last June, the U.S. Supreme Court refused to hear Eizember’s last appeal. He’s still on death row in Oklahoma.
