Can a petitioner present new mitigating evidence to show innocence of the death penalty?

Death Penalty

Lisle v. State (Nev. Supreme Ct. – June 25, 2015)

The issue is whether a claim of actual innocence of the death penalty offered as a gateway to reach a procedurally defaulted post conviction relief claim can be based on a showing of new evidence of mitigating circumstances.

On the evening of October 22, 1994, Melcher was driving on a Las Vegas freeway and pulled his van alongside a Mustang driven by Logan. Lisle, the front passenger in Melcher’s van, shot and killed Logan. Evans was in the van’s back seat, and he and Melcher testified against Lisle at trial. The jury found Lisle guilty of first-degree murder with the use of a deadly weapon, found a single aggravating circumstance (the murder was committed by a person who knowingly created a great risk of death to more than one person), found other mitigating circumstances, and concluded that the mitigating circumstances did not outweigh the aggravating circumstance. The jury sentenced Lisle to death. The Nevada Supreme Court affirmed the judgment and sentence.

Lisle then filed a timely post-conviction petition for a writ of habeas corpus, and the district court appointed counsel to supplement and litigate the petition. The district court denied the petition, and the Nevada Supreme Court affirmed the district court’s order. Lisle filed his second post-conviction habeas petition, claiming that he received ineffective assistance of trial, appellate, and post-conviction counsel. The district court dismissed the petition as procedurally barred. Lisle appealed.

Lisle argued, among other issues, that he was actually innocent of the death penalty on two grounds. First, he argued that there was insufficient evidence of the single aggravating circumstance found by the jury. Second, he argued that had the jury been presented with the new evidence of mitigating circumstances that he provided to the post-conviction court, no rational juror would have found him eligible for the death penalty.

The Nevada Supreme Court found that the first ground underlying Lisle’s actual-innocence claim, based on a challenge to the aggravating circumstance, lacked merit. Lisle pointed to no new evidence supporting his claim of actual innocence with respect to the aggravating circumstance. Nor did his arguments present any issue of first impression as to the legal validity of the aggravating circumstance. Accordingly, Lisle had not demonstrated actual innocence based on his challenge to the aggravating circumstance, and the Court concluded that the district court did not err in declining on this basis to reach Lisle’s procedurally barred claims.

The second ground underlying Lisle’s actual-innocence claim presented an issue of first impression for the Court: can a claim of actual innocence of the death penalty offered as a gateway to reach a procedurally defaulted claim be based on a showing of new evidence of mitigating circumstances? Although the Court had not answered that question, the United States Supreme Court addressed it in Sawyer v. Whitley, 505 U.S. 333 (1992), in the context of a successive federal habeas petition challenging a Louisiana death sentence.

The Sawyer court rejected the idea that the actual-innocence exception to procedural default should extend to the existence of new mitigating evidence. The court’s conclusion was based primarily on two observations. First, extending actual innocence to include new mitigating evidence would reduce the exception to little more than what is already required to show ‘prejudice,’ a necessary showing for habeas relief for many constitutional errors, such as ineffective assistance of counsel. The court reasoned that a petitioner should have to show something more than he would have had to show to obtain relief on his first habeas petition to get a court to reach the merits of his claims on a successive habeas petition. Second, the subjective nature and breadth of mitigating circumstances would so broaden the actual innocence inquiry as to make it anything but a narrow exception to the principle of finality. The Court agreed that these observations counsel against opening the actual-innocence gateway to include new mitigating evidence, for otherwise the exception would swallow the procedural defaults adopted by the Legislature.

Lisle, however, argued that applying language in Sawyer to Nevada’s death penalty scheme leads to the conclusion that, in Nevada, a petitioner should be allowed to demonstrate actual innocence of the death penalty by showing the existence of new mitigating evidence. In particular, Lisle focused on the Sawyer court’s conclusion that sensible meaning is given to the term “innocent of the death penalty” by allowing a showing in addition to innocence of the capital crime itself a showing that there was no aggravating circumstance or that some other condition of eligibility had not been met. Lisle suggested that there is another “condition of eligibility” in Nevada, the weighing determination—whether mitigating circumstances are not sufficient to outweigh the aggravating circumstance(s). As support, Lisle pointed to a statement by the Nevada Supreme Court that under Nevada law a defendant is death-eligible only if, in addition to at least one aggravating circumstance, the sentencing body finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found. Based on Lisle’s analysis, new mitigation evidence could provide the basis for a claim that a petitioner is actually innocent of the death penalty.

After review of Sawyer, the Court rejected Lisle’s analysis. Although the Nevada Supreme Court has characterized the weighing determination as one of two findings required to make a defendant death-eligible in Nevada, the Sawyer court used the word “eligibility” to refer to a more limited aspect of the process for imposing a death sentence. The U.S. Supreme Court has required that the capital sentencing process narrow the class of murderers subject to capital punishment by providing specific and detailed guidance to the sentencer and allow for consideration of the character and record of the individual offender and the circumstances of the particular offense.

The court’s analysis in Sawyer comports with this understanding of the “eligibility” and “selection” phases of the capital sentencing process. After discussing the narrowing requirement and explaining that it was met under the Louisiana statute by the elements of the capital offense and the finding of at least one statutory aggravating factor, the Sawyer court characterized that process as establishing “eligibility for the death penalty.” The Sawyer court then explained that once the elements of the offense and at least one statutory aggravating factor had been found, the emphasis shifts from narrowing the class of eligible defendants by objective factors to individualized consideration of a particular defendant. At that point, consideration of aggravating factors together with mitigating factors, in various combinations and methods dependent upon state law, results in the jury’s or judge’s ultimate decision as to what penalty shall be imposed. The court’s explanation of the two-part sentencing process demonstrated that “eligibility” is used in Sawyer as a descriptor for the aspect of the capital sentencing process in which the class of defendants who may be subject to the death penalty is narrowed.

In contrast, the Nevada Supreme Court explained that the term “eligibility” used in the case cited by Lisle to refer to both aspects of the capital sentencing process— narrowing and individualized consideration. The Court’s use of “eligibility” in this fashion did not reflect an expansion of the narrowing aspect of the capital sentencing process in Nevada to include individualized consideration. To the contrary, the Court focused on the same factors as the U.S. Supreme Court in evaluating whether Nevada has sufficiently narrowed the class of defendants who may be sentenced to death—the elements of the offense and the statutory aggravating circumstances.

The Court further explained that its use of “eligibility” to refer to both aspects of the capital sentencing process stems from a relatively unique aspect of Nevada law that precludes the jury from imposing a death sentence if it determines that the mitigating circumstances are sufficient to outweigh the aggravating circumstance or circumstances. Although this statutory requirement limits the jury’s discretion to sentence a person to death, it is not part of the narrowing aspect of the capital sentencing process. Rather, its requirement to weigh aggravating and mitigating circumstances renders it, by definition, part of the individualized consideration that is the hallmark of what the U.S. Supreme Court has referred to as the selection phase of the capital sentencing process—the consideration of aggravating factors together with mitigating factors to determine what penalty shall be imposed.

The Court reasoned that the very nature of the weighing determination further supports its conclusion that the weighing determination was not what the Sawyer court had in mind when it referred to a “condition of eligibility” other than aggravating circumstances that may be relevant to the actual innocence gateway. In particular, the mitigating circumstances are not statutorily limited to an obvious class of relevant evidence, and the weighing determination itself is a moral determination, not an objective determination of facts.

First, as the Sawyer court recognized, mitigating evidence is categorically different in its nature and breadth than the elements of the capital crime and statutory aggravating circumstances that the Court determined could be the basis for showing innocence of the death penalty. Mitigating evidence cannot be confined by statute to a relatively obvious class of relevant evidence; rather, it includes any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

Second, the Sawyer court focused on the importance of objective standards in applying the actual innocence inquiry in the context of the death penalty. The elements of a capital offense and the aggravating circumstances are objective factors or conditions. They therefore provide a workable standard for applying the actual-innocence gateway in the context of a death sentence. In contrast, the weighing of mitigating and aggravating circumstances does not allow for objective standards because it is a moral determination and, as such, it cannot be reduced to a scientific formula or the discovery of a discrete, observable datum. Thus, the Court concluded that opening the actual-innocence gateway to include new mitigating evidence does not present a workable analog.

The Court further concluded that an actual-innocence inquiry in Nevada must focus on the objective factors that make a defendant eligible for the death penalty, that is, the objective factors that narrow the class of defendants for whom death may be imposed. To hold otherwise would allow the exception to swallow the procedural bars. Accordingly, the Court found that the district court did not err in rejecting Lisle’s effort to circumvent the procedural bars to his petition by asserting a claim that he was actually innocent of the death penalty based on new mitigation evidence.

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