William & Mary Law School William & Mary Law School Scholarship Repository

Supreme Court Preview Conferences, Events, and Lectures

9-13-2019

Section 3: Criminal Law

Institute of Bill of Rights Law at the William & Mary Law School

Follow this and additional works at: https://scholarship.law.wm.edu/preview

Part of the Criminal Law Commons, and the Supreme Court of the United States Commons

Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 3: Criminal Law" (2019). Supreme Court Preview. 290. https://scholarship.law.wm.edu/preview/290

Copyright c 2019 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview III. Criminal Law

In This Section:

New Case: Kahler v. Kansas “SUPREME COURT TO EXAMINE INSANITY DEFENSE, NEED FOR JURY UNANIMITY” Jess Bravin “KANSAS QUADRUPLE KILLER’S SCOTUS APPEAL COULD CHANGE INSANITY DEFENSES NATIONWIDE” Nick Viviani “CONSENSUS OF CONFUSION: DETERMINING THE CONSTITUTIONALITY OF THE INSANITY DEFENSE” Rafael Santa Maria “KANSAS SUPREME COURT UPHOLD JAMES KAHLER’S MURDER CONVICTION, DEATH SENTENCE” Morgan Chilson

New Case: Kelly v. United States “HIGH COURT TAKES ON ‘BRIDGEGATE’ APPEAL” Bill Wichert “EX-CHRISTIE AIDE GETS SUPREME COURT HEARING ON BRIDGE SCANDAL” Greg Stohr “SUPREME COURT TO HEAR APPEAL IN BRIDGEGATE CASE” Ryan Hutchins “WHY THE ‘BRIDGEGATE’ SCANDAL COULD BACKFIRE ON PROSECUTORS” Nick Corasaniti “BARONI SENTENCED TO 2 YEARS IN PRISON FOR ROLE IN BRIDGEGATE SCANDAL; KELLY GETS 18 MONTHS” Ryan Hutchins “BRIDGEGATE CONVICTIONS FOR BARONI AND KELLY MOSTLY UPHELD” Matt Friedman

New Case: Ramos v. Louisiana “SUPREME COURT TO EXAMINE WHETHER UNANIMOUS JURIES ARE REQUIRED FOR CRIMINAL CONVICTIONS” Robert Barnes “JURY UNANIMITY BID GETS HIGH COURT LOOK” Jordan S. Rubin “ARE UNANIMOUS JURIES REQUIRED IN STATE CRIMINAL CASES? SCOTUS WILL CONSIDER OVERRULING PRECEDENT”

145 Debra Cassens Weiss

New Case: Mathena v. Malvo “SUPREME COURT WILL HEAR CASE OF LEE MALVO, THE D.C. SNIPER” Adam Liptak “SUPREME COURT TO CONSIDER WHETHER BELTWAY SNIPER LEE BOYD MALVO DESERVES NEW SENTENCING” Robert Barnes “SUPREME COURT TO CONSIDER LIFE-WITHOUT-PAROLE FOR TEEN DC SNIPER” Debra Cassens Weiss “U.S. APPEALS COURT CALLS D.C. SNIPER’S LIFE SENTENCES ILLEGAL” Jonathan Stempel

146 Kahler v. Kansas

Ruling Below: State v. Kahler, 410 P.3d 105 (Kan. 2018).

Overview: Kahler was convicted of capital murder and sentenced to death. He argued that the prosecution violated his right to a fair trial. He also argued that Kansas law violated his constitutional rights of claiming insanity under the Eighth and Fourteenth Amendments.

Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

STATE of Kansas, Plaintiff-Appellee

v.

James K. KAHLER, Defendant- Appellant

Supreme Court of Kansas

Decided on February 9, 2018

[Excerpt; some citations and footnotes omitted]

PER CURIAM:

A jury convicted James Kraig Kahler of sentence. We summarize our specific aggravated burglary and capital murder holdings as follows: under K.S.A. 21-3439(a)(6) for fatally shooting his wife, his wife's grandmother, • The State did not commit and his two daughters. Kahler appeals the prosecutorial error by objecting capital murder conviction and the ensuing during Kahler's closing argument. sentence of death; our review is automatic • The district court judge engaged in under K.S.A. 2016 Supp. 21-6619. one incident of judicial misconduct Kahler raises 10 issues on appeal. Some of that does not require reversal. the raised issues present questions decided • The district court judge erred in unfavorably to Kahler in prior cases, and refusing to give a requested expert Kahler presents no new argument or witness instruction, but the error was authority that would persuade us to change harmless. our holdings on those issues. Likewise, Kahler fails to convince us that his other • K.S.A. 22-3220, which adopted the challenges warrant a reversal of his capital mental disease or defect defense, did murder conviction or a vacation of his death

147 not unconstitutionally abrogate A recitation of some family history preceding Kansas' former insanity defense. the murders is necessary to put Kahler's crimes in context. In 2008, the • Because felony murder is not a Kahler family—husband, Kahler; wife, lesser included offense of capital Karen; teenage daughters, Emily and Lauren; murder, the district court judge did and 9-year-old son, Sean—was living in not err in failing to give a lesser Weatherford, Texas. Kahler was the director included instruction on felony of the public utilities department, and Karen murder. was a personal trainer. Both adults had successful careers. Acquaintances described • The district court judge did not the Kahlers as a perfect family. Kahler was prohibit defense counsel from extremely proud of his family; it was his top questioning prospective jurors during priority. voir dire about their views on the death penalty. That summer, Kahler took a new job as the director of water and light for the city of • The cumulative effect of trial errors Columbia, Missouri. He moved to Columbia, did not substantially prejudice Kahler while Karen and the children stayed in Texas, so as to deny him a fair trial. planning to follow him in the fall. Before • The Kansas death penalty is not a Kahler left for Columbia, Karen told him she categorically disproportionate was interested in experimenting by engaging punishment for offenders who are in a sexual relationship with a female trainer severely mentally ill at the time they with whom she worked. Kahler assented to commit their crimes. the sexual relationship.

• The two aggravating factors relied Kahler thought the affair would end when upon by the State to support the death Karen and the children moved to Missouri; penalty are not unconstitutionally however, it did not. At a New Year's Eve vague or duplicative. party in Weatherford, Kahler was embarrassed by Karen and her lover's • There was sufficient evidence behavior, and the evening resulted in a presented by the State to establish that shoving match between the Kahlers. The pair the killings in this case were attempted marriage counseling, but by mid- committed in a heinous, atrocious, or January 2009, Karen filed for divorce. In cruel manner. mid-March, Karen made a battery complaint against Kahler, which resulted in an arrest Consequently, we affirm Kahler's capital warrant being served on Kahler at a city murder conviction and his sentence of death. council meeting. Because Kahler held public office, his arrest was widely publicized. FACTUAL AND PROCEDURAL BACKGROUND Shortly thereafter, Karen took the children and moved out of Kahler's residence.

148 The disintegration of his marriage and family the back door, into the kitchen, and started relationships affected Kahler's conduct, both shooting. He shot Karen twice but did not personally and professionally. Kahler's attempt to harm Sean. After Kahler moved supervisor and another colleague both noted through the kitchen to shoot the other Kahler's increasing preoccupation with his victims, Sean ran out the back door and to a personal problems and decreasing attention neighbor's home where the police were to his job. By August 2009, the city had fired called. Kahler. Concerned about Kahler's well- being, his parents traveled to Columbia and About the same time, Wight's Life Alert moved Kahler back to their ranch near system activated a call for emergency Meriden, Kansas. assistance and that in turn resulted in a 911 call to law enforcement. The system also Later that year, at Thanksgiving, Sean joined created a recording of the events in the house. Kahler at the family ranch in Meriden, while Karen and the girls went to Karen's sister's When officers arrived, Karen was lying on home in Derby. The family had a long- the kitchen floor, unconscious and barely standing tradition of spending the weekend breathing. Emily, who had also been shot after Thanksgiving at the home of Karen's twice, was dead on the living room floor. grandmother, Dorothy Wight, in Burlingame, Wight was sitting in a chair in the living Kansas. Arrangements had been made for room, suffering from a single gunshot wound Karen to pick up Sean in Topeka to the abdomen, but conscious. Lauren, who on Saturday, November 28, and take him to had been shot twice, was found upstairs, Wight's residence in Burlingame. That conscious but having trouble breathing. morning, Sean, who had been enjoying his Kahler was no longer in the house, but both time at the Meriden ranch, fishing and Wight and Lauren told the first responders hunting with his father, called Karen to ask if that Kahler was the person who had shot he could stay at the ranch. Karen denied them. Karen and Lauren died from their permission, and while Kahler was out wounds later that evening. Wight survived a running an errand, Kahler's mother took Sean few days but ultimately succumbed to her to meet Karen in Topeka. wounds as well.

Between 5:30 and 6 that evening, in Kahler managed to elude law enforcement Burlingame, a neighbor of Wight's called that evening but was found walking down a police about a man in a red Ford Explorer country road the next morning. He near her home whom she suspected of surrendered without incident. The State criminal activity. The Explorer was later charged Kahler with one count of capital determined to be Kahler's vehicle. Around 6 murder, or, in the alternative, four counts of p.m., Sean and Karen were standing in the premeditated first-degree murder, as well as kitchen of Wight's home, while Emily, one count of aggravated burglary for the Lauren, and Wight were elsewhere in the unauthorized entry into Wight's house. house. Kahler entered Wight's house through

149 At trial, the defense did not dispute that it was capital murder conviction and the ensuing Kahler who shot the victims. Rather, the death sentence. Consequently, we will review defense attempted to establish that severe only that conviction and sentence and will depression had rendered Kahler incapable of address each issue in the order presented. forming the intent and premeditation required to establish the crime of capital murder. The defense presented testimony from Dr. I. PROSECUTORIAL ERROR Stephen Peterson, a forensic psychiatrist, In his first issue, Kahler alleges that the who testified that Kahler was suffering from prosecutor engaged in prosecutorial severe major depression at the time of the misconduct when she objected during crime and that "his capacity to manage his defense counsel's closing argument. Defense own behavior had been severely degraded so counsel was discussing the that he couldn't refrain from doing what he recording produced during the commission did." Defense counsel, however, did not of the crime by the Life Alert system. A male specifically ask Dr. Peterson whether Kahler voice, presumably Kahler's, had been had the capacity to premeditate or to form the captured on the recording. Defense counsel requisite intent to commit the crimes. The was about to state the words spoken by that State countered with the expert testimony of male voice, when the prosecutor interrupted, Dr. William Logan, also a forensic objecting that defense counsel's argument psychiatrist, who opined that Kahler was constituted improper unsworn testimony capable of forming the requisite intent and based on what defense counsel thought the premeditation. voice had said. The district court sustained During closing arguments, defense counsel the objection. asserted that Kahler was incapable of Standard of Review/Error Analysis forming the requisite premeditation or intent at the time of the killings. In return, the State At oral argument, both parties acknowledged argued that the defense expert had failed to that this court's decision in State v. Sherman, specifically address that point, while the although decided after the briefs in this case State's expert had directly stated that were filed, now controls the analysis of this Kahler was capable of premeditating the issue. Sherman ended the practice followed murder and forming the requisite intent to by State v. Tosh, overruled by Sherman, of kill. attempting to factor a prosecutor's ill will and gross misconduct into the prejudice step of The jury convicted Kahler of capital murder. the two step error/prejudice analysis when After hearing additional evidence in the reviewing an allegation of prosecutorial penalty phase, the same jury recommended misconduct on appeal. Sherman substituted the death sentence. an analysis that is focused on the defendant's As noted, Kahler raised 10 issues on appeal, due process right to receive a fair trial. all of which are argued in the context of the

150 Sherman continues to utilize a two-step in the past and is no longer appropriate to our error/prejudice framework and the first analysis of prosecutorial error within a step—the error analysis—remains the same. criminal appeal. Thus, the question before the "Under the first step, we will continue to court under Sherman, as it was under analyze whether the prosecutor's statements previous caselaw, is simply whether making 'fall outside the wide latitude afforded an objection, even one based on an erroneous prosecutors to conduct the State's case and application of law, was outside the wide attempt to obtain a conviction in a manner latitude afforded the prosecutor in making that does not offend the defendant's her case to the jury. constitutional right to a fair trial.'" If error occurred, the State must prove beyond a We conclude that it is within the prosecutor's reasonable doubt that "'the error complained permissible latitude to object that the defense of will not or did not affect the outcome of is about to go beyond the admitted evidence the trial in light of the entire record, i.e., in its summation to the jury. As we discuss where there is no reasonable possibility that below, the district court's ruling on the the error contributed to the verdict.'" prosecutor's objection may have been erroneous. But this fact has no bearing on the Analysis determination of whether the objection itself was prosecutorial error. Kahler maintains that his right to a fair trial was violated when the prosecutor objected to II. JUDICIAL MISCONDUCT defense counsel's attempt in closing Kahler alleges that the district court judge argument to repeat what was said by the male engaged in misconduct throughout the trial, voice on the Life Alert recording. The which cast his defense in a bad light, favored prosecutor's objection was based on the the State's case, and denied him his right to a assertion that defense counsel was not fair trial. Kahler points to six specific allowed to state his opinion of the content of instances to illustrate his argument. the tape and doing so amounted to improper testimony. At trial, defense counsel failed to object to any of the claimed misconduct. But an At oral argument, Kahler argued that the appellate court will review allegations of objection was error because it was motivated judicial misconduct that were not preserved by bad faith and attempted to liken it to a at trial when the defendant's right to a fair misstatement of law. In other words, Kahler trial is implicated. In addition, we are attempts to move the bad faith analysis statutorily obligated to review this issue previously conducted under the prejudice because of the death sentence imposed. step to the error step. But ill will has never been part of the error determination. Standard of Review And Sherman is clear that measuring prejudice by attempting to discern the Our standard of review on claims of judicial prosecutor's motivation has been problematic misconduct is unlimited. We examine the

151 particular facts and circumstances of the case addition to asking the panel members to to determine whether judicial conduct speak clearly for the court reporter and to pay including comments, other than jury attention to all the questions asked whether instructions, rise to the level of judicial directed specifically to them or not, the misconduct. district judge added the following caution:

Analysis "It's also important that you be careful. We want you to talk frankly, The Kansas Code of Judicial Conduct we want you to answer questions and (KCJC) requires a judge to act in a speak from your heart, but we don't manner that promotes public confidence in want any outbursts of opinions that the integrity and impartiality of the judiciary. might prejudice the rest of this panel so before you speak in any manner An erroneous ruling by a judge, standing like that, think twice. And I warned alone, will not establish judicial misconduct. you, anyway, regarding that, Rather, the reviewing court will look for regarding your personal opinions." conduct that manifests bias, prejudice, or partiality, or otherwise significantly Kahler argues these remarks to the third panel undermines the fairness or reliability of the dissuaded the panel members from proceedings. The complaining party has the expressing their opinions and inhibited the burden to establish that judicial misconduct voir dire process. The State counters that, put occurred and that the misconduct prejudiced in context, the district judge's remarks were the party's substantial rights. "'If a proper and nothing more than a reasonable admonition reasonable construction will render the to prevent one of the potential jurors from remark unobjectionable, the remark is not tainting the rest of the panel and were well prejudicial.'" within the district judge's responsibility to control the courtroom. We agree with the With those ground rules to guide us, we turn State. to the individual instances alleged by Kahler to be judicial misconduct, followed by a A district judge is charged with preserving consideration of their cumulative effect. order in the courtroom and with the duty to see that justice is not obstructed by any A. Warning a voir dire panel against person. The record establishes that outbursts of opinion throughout the voir dire of the first two Kahler first complains of remarks the district panels, the district judge had expressed judge made to a panel of the jury pool during concern about questioning by the defense that voir dire. Four panels of venire members might elicit panel members' views on the were questioned. The remarks Kahler finds death penalty. We have approved of similar objectionable were made to the third panel remarks in other cases where the district and were part of the district judge's judge sought to prevent contamination of the preliminary remarks explaining voir dire. In jury pool.

152 We note, however, that the better practice of the trial; and refrain from unnecessarily would have included a clarification by the disparaging persons or issues." district judge that panel members would have an opportunity to raise any personal Kahler argues that his counsel took no more concerns outside the presence of the other time for voir dire than the prosecution had venire members. But it is clear that the taken. For support, Kahler compares the district judge's failure to include such a number of transcript pages that contain voir clarification to the third panel was an dire questioning by the prosecutor to the oversight, as his comments to the fourth number taken by defense counsel's panel included just such a statement. questioning. This method of quantifying time is inherently unreliable. More to the point, In sum, we find no misconduct in the district however, there is nothing in the district judge's comments to the third panel. judge's comments that reflects negatively on defense counsel's conduct. The statement concerned the orderly progress of the trial, B. Asking defense counsel to move along and nothing suggests that the statement was delivered in anything less than a dignified Kahler complains that the district judge and restrained manner. The statement was a committed misconduct when he asked request, not an order, and clearly recognized defense counsel to speed up his voir dire that defense counsel was entitled to ask his questioning. During the defense voir dire of questions. the third panel on the second morning of jury selection, the district judge told defense We once again note the better practice, which counsel, "we need to move through this a would have the district judge make such little faster if we can. I realize you have a administrative requests out of the presence of right to all your questions but we're running the venire panel. Nonetheless, merely behind now." Kahler argues this shows bias requesting trial counsel to move a little faster, because the judge did not make a similar if possible, does not amount to judicial request of the State and the defense misconduct. questioning had not exceeded the time afforded the prosecutor. C. Comments on instructing the jury The trial judge has broad discretion in following opening statements controlling the courtroom proceedings. "When it is necessary to comment on Both parties gave relatively straightforward counsel's conduct, especially in the jury's opening statements. The prosecutor gave a presence, the trial court should do so in a brief overview of the shootings and then dignified, restrained manner; avoid repartee; summarized testimony he expected to elicit limit comments and rulings to those from each of the State's witnesses about the reasonably required for the orderly progress crime and the crime scene. The defense focused on painting a picture of the events

153 that led up to the crime: Kahler's professional normally don't do this, but I am going success, the many happy years of the Kahlers' to ask that you listen carefully. This is marriage and family life, the breakdown of one of the instructions that will be the marriage, and Kahler's obsession with given to you later but I wish to give it saving it. to you now also. That statement is: Statements, arguments, and remarks There were no objections during the State's of counsel are intended to help you in opening; however, the State objected three understanding the evidence and in times during Kahler's opening. After defense applying the law, but they are not counsel had attributed statements to Karen, evidence. If any statements are made the prosecutor asked to approach the bench. that are not supported by evidence, At the bench, the prosecutor lodged an they should be disregarded." objection based on hearsay. The district judge (Emphasis added.) sustained the objection and instructed Kahler's counsel to set out the expected Kahler argues the district judge's comments evidence and not to testify. The objection and prior to the actual instruction showed bias— discussion were had out of hearing of the particularly the comment that the judge did jury. not normally give the instruction but wished to do so this time. Kahler argues that it Almost immediately after the bench amounted to a negative comment on defense conference, the prosecutor objected a second counsel's credibility. time, saying only "same objection" when counsel for Kahler again attributed The State focuses only on the instruction and statements to Karen. This time the district ignores the judge's comments preceding the judge responded within hearing of the jury: instruction. It argues the instruction itself was "All right. [Defense counsel], we talked. a fair and accurate statement of the law. It Unless you intend to call witnesses to support also points to K.S.A. 2016 Supp. 22-3414(3), what you're saying, they're not allowed." which provides "the judge, in the judge's discretion, after the opening statements, may Later, the prosecutor requested to approach instruct the jury on such matters as in the the bench again to lodge an objection to judge's opinion will assist the jury in defense counsel using the word "crazy" to considering the evidence as it is presented." describe Kahler's behavior. The discussion But the State fails to acknowledge that the and the judge's admonition not to use the district judge gave the jury a set of word were outside the jury's hearing. instructions prior to opening statements, which included an instruction on considering Immediately following Kahler's opening only testimony and exhibits admitted into statement, the district judge said: evidence and an instruction that it is up to the "All right. Ladies and gentlemen of jury to determine the weight and credit to be the jury, I'm going to read an given the testimony of each witness. instruction to you at this time. I

154 Given the context of the prosecution's instruct the jury, as the judge did in this case, objections during the defense's opening that "I have not meant to indicate any opinion statement, the judge's comment undoubtedly as to what your verdict should be by any brought special attention to the instruction. ruling that I have made or anything that I Moreover, given the timing of the district have said or done." Nothing suggests the court's comment, the jury's attention would judge's isolated comment here influenced the undoubtedly have been directed to the jury's consideration or misdirected the jury's defense's opening argument. The jury had focus. just heard the district judge admonish defense counsel by saying, "Unless you intend to call Indeed, the instruction given after the judge's witnesses to support what you're saying, ill-advised comment pointed the jury exactly they're not allowed." When the district judge where it needed to go: The instruction commented immediately on the heels of the focused the jury on the evidence. That is the opening statements, he underscored his point of the instruction, which is often given suspicion that the defense would not be able repeatedly through a trial. Consequently, we to introduce evidence that would allow the hold the judge's comment to be harmless jury to attribute certain statements to Karen. error under either the constitutional or This belief should not have been revealed to nonconstitutional harmless error standard. the jury. D. Personally questioning a witness This court has previously warned district judges to "limit[] comments and rulings to The prosecution's theory at trial was that what is reasonably required for the orderly Kahler shot the victims with a .223 caliber progress of the trial, and refrain[] from rifle or "long gun." Shell casings found at the unnecessary disparagement of persons or scene and bullets found in a clip near where issues." Here, the comment added nothing to Kahler was arrested were .223 caliber. The the orderly progress of the trial—the gun used in the murders, however, was never instruction could have been given without found. During testimony, a Shawnee County editorial comment or explanation. The deputy testified that she was asked to look for district judge erred in making the comment. a "long gun" in Kahler's impounded vehicle as part of the investigation. She testified that Error alone does not require reversal, she was unable to find a gun but did find an however. "'The question is whether [the empty box for a Remington .223. She defendant]'s substantial rights to a fair trial testified she left the box in the car. The were prejudiced by the court's district judge apparently did not think this statements.'" Here, the district judge's testimony was clear, and at the end of the isolated comment did not show the type of prosecutor's questioning, questioned the judicial bias that denies a fair trial. On witness himself: occasion, district judges reveal, usually unintentionally, a bias on an issue. "BY THE COURT: Q. And I will ask Consequently, district judges routinely this just as a matter of clarification

155 before the break; you mentioned an "A. It would have been .223. empty box Remington .223 caliber, is that correct, caliber? "Q. And REM, is that reference to the caliber or the brand of gun? "A. It was told to me that it was a Remington .223. "A. The brand of gun."

"Q. All right. Now when you said Later testimony clarified that the box was for that, are you talking about a gun itself, a long gun and the serial number of the gun or the bullet, or caliber of gun? that would have come in that box was registered to Kahler. Kahler maintains the "A. It was the box for a gun. district judge aided the State in proving its theory that a long gun was used in the crime "Q. Okay. You don't know whether it and the assistance had the effect of bolstering was a Remington brand gun or some the State's case and credibility. other brand? This court has allowed questioning of "A. I was told that it was a Remington witnesses from the bench "based upon the .223. premise that one of the functions of a trial judge is to accomplish the full development "THE COURT: Counsel, you want to of the truth." But we have cautioned that the try [***30] to clarify that with her? practice must not result in the slightest "[Prosecutor]: Sure. suggestion of partiality or bias. For decades, we have expressed our view that the better . . . . practice is for the district judge to discuss the matter with counsel outside the presence of "[Prosecutor]: Q. You didn't find a the jury and ask counsel to pose the questions weapon in the vehicle, did you? necessary to clarify the matter.

"A. No. Although the better practice would have been for the district judge to follow the procedure "Q. You found a box that appeared to set out in Boyd, we see no misconduct here be a gun box? because there was no suggestion of partiality. "A. Yes. Although Kahler contends that the judge's questioning aided and bolstered the State's "Q. And it listed a caliber of the case, it is just as probable that by stepping in weapon at the end of it? to clarify and suggesting to the prosecutor that he follow up with additional questions, "A. Yes. the district judge's comments reflected negatively on the State's presentation. Kahler "Q. And what was the caliber of the does not argue that the questions asked were gun? improper, and they drew no objection from

156 defense counsel at the time. We also note that "THE COURT: I think it's improper. the importance to the State's case regarding You cannot say what you think is on the type of gun used was nearly nonexistent the tape. given Kahler's defense was not based on denying the shootings. Ultimately, the judge "[Defense Counsel]: Well, can I say did not assume the role of an advocate; he what is on the tape, Your Honor? merely attempted to clarify a point he "THE COURT: They can listen for apparently felt was unclear—a point that themselves. was of virtually no importance to the trial. Consequently, we find no misconduct. "[Defense Counsel]: All right."

E. Sustaining objection to closing comments Kahler argues the district judge committed about voice on tape misconduct in two ways: first, by erroneously sustaining the objection and, second, by We rejected Kahler's argument above that the labeling defense counsel's conduct prosecutor committed prosecutorial error by "improper." objecting to defense counsel's attempt to quote the male voice on the Life Alert The State maintains that counsel for Kahler recording. Here we address his argument that was about to misrepresent the evidence. It the district judge committed misconduct by argues there was no testimony as to what the sustaining the objection. male voice on the tape specifically said. And noting that the voice itself is barely The transcript reflects the following: discernible, the State argues anything counsel "[By Defense Counsel]: . . . you're would have said in regard to content would going to hear a male voice during this not have been based on the evidence. absolute chaos say . . . Accordingly, the State contends the district court was correct to sustain the objection. "[Prosecutor]: Your Honor, I'm going to object. The tape's in evidence. And We disagree. The district court sustained the counsel's not allowed to testify and objection in error, if for no other reason than tell the jury what he thinks is on that because it was premature. The record does tape. not contain a proffer of the words that defense counsel thought were on the tape, so we "[Defense Counsel]: Your Honor, I cannot know for sure whether they can say what I think's on that tape. comported with the admitted evidence. But They've got the tape and if it doesn't we do know there was more evidence than the say it—counsel just said what all State acknowledges. In addition to these witnesses said. I'm certainly the original recording itself, the record allowed to say what the tape says. includes Dr. Peterson's report and the transcript contained on the enhanced CD, which indicate that the voice said, "I am

157 going to kill her." So, if defense counsel was F. Discouraging the jury from asking going to state that the male voice on the tape questions during deliberations said "I am going to kill her," it would have been entirely proper for defense counsel to For his final allegation of judicial discuss that statement and any reasonable misconduct, Kahler alleges that, before inferences to be drawn from it. sending the jurors to deliberate at the end of the guilt phase, the district judge discouraged But an erroneous ruling by the district judge, them from asking any questions they might standing alone, is not grounds for finding have during deliberations. The particular judicial misconduct. Something more is remarks Kahler complains of concerned what required. Here, Kahler argues that the words the jurors should do in the event they had the district judge used in ruling on the questions. The judge stated: objection denigrated the defense. But the words used to sustain the objection did not "The bailiff will be outside the door denigrate counsel personally. The phrase "it's here and if you have any questions improper" appears to be a reference to the you can knock on the door and form of the argument counsel was attempting communicate with her. to use. These are the words our opinions "Now I have given you the frequently use to characterize argument or instructions[,] that's the law of the conduct of counsel as impermissible. case. Counsel has presented the Granted, when we issue an opinion we are not evidence, the facts of the case. You speaking within earshot of the jury. But we should apply the law to the facts. You believe juries can be expected to understand have everything you need to decide that objections will be made and ruled upon this case. You should review the in terms of what is proper and what is or is instructions for the answers to any not allowed without assuming nefarious questions you might have. You should purposes by counsel, at least not those not have to ask any questions. beyond normal trial advocacy. We cannot However, if you have a question there fault the district judge for framing his is a process that we must go through ruling—although erroneous—in commonly and you should be aware of that used terms. process. You can't just ask the bailiff to tell me your question so that I can Accordingly, we find no judicial misconduct. run back there and give you an We do, however, find that the district court's answer. sustaining of the State's objection was an unassigned trial error. Given the record and "The process that we must follow the arguments before us, we do not find this requires that any question that you error requires reversal standing alone. might ask be in writing. And the presiding juror must prepare that question in writing, hand it to the

158 bailiff, and I must then assemble not have to ask any questions, in context, counsel and the defendant and we appears to be a statement that the jury had the must discuss the question to decide necessary information to reach a decision. whether we are able to give you an The statement was an encouragement to the answer and, if so, what that answer jurors to review the instructions before should be. My experience as a Judge asking a question rather than a has been that although sometimes we discouragement from asking any questions at are able to give jurors answers, for all. The statement informed the jurors that the most part the answer you're most questions would likely be answered by going to receive to most questions referring the jury back to the instructions. will be refer to your instructions for Nothing in the comments demonstrated bias, advice." (Emphasis added.) prejudice, or partiality toward either party. We find no misconduct. Kahler focuses on the italicized comments and argues they demonstrated impatience G. No cumulative prejudicial effect with the steps necessary to meet the due process and Eighth Amendment As noted above, we have typically required requirements of a capital case. He points the party asserting judicial misconduct to to K.S.A. 22-3420(3) to argue the jury had a show that any misconduct found to exist right to ask questions. At the time of actually prejudiced that party's substantial trial, K.S.A. 22-3420(3) provided: rights. Kahler urges us to apply the constitutional harmless error test set out "After the jury has retired for in Ward. But having found only one instance deliberation, if they desire to be of misconduct that was not reversible informed as to any part of the law or standing alone, the cumulative error rule is evidence arising in the case, they may inapplicable here. request the officer to conduct them to the court, where the information on In the process of reviewing the judicial the point of the law shall be given, or misconduct claims, we noted some instances the evidence shall be read or in which the district judge could have applied exhibited to them in the presence of a better practice to the situation at hand. the defendant, unless he voluntarily Nonetheless, we discern no pattern of absents himself, and his counsel and conduct that manifested bias, prejudice, or after notice to the prosecuting partiality against the defendant, and Kahler's attorney." claim of judicial misconduct fails.

The remarks in this case were both legally III. EXPERT WITNESS INSTRUCTION and factually accurate; the jury was informed Prior to trial, Kahler requested that the that questions could be asked; and the process district court give the jury an instruction on that would be used to answer them was how it may consider the opinion testimony of explained. The comment that the jury should experts. The State objected and the district

159 court declined to give the proffered who has knowledge, skill, experience, instruction because expert opinion training or education, may testify and instructions are not recommended by the state an opinion concerning such criminal Pattern Instructions for Kansas matters. (PIK). Kahler claims that the district court's ruling was erroneous. "You are not required to accept such an opinion. You should consider Standard of Review opinion testimony just as you consider other testimony in this trial. "For jury instruction issues, the progression Give opinion testimony as much of analysis and corresponding standards of weight as you think it deserves, review on appeal are: (1) First, the appellate considering the education and court should consider the reviewability of the experience of the witness, the issue from both jurisdiction and preservation soundness of the reasons given for the viewpoints, exercising an unlimited standard opinion, and other evidence in the of review; (2) next, the court should use an trial." unlimited review to determinewhether the instruction was legally appropriate; (3) then, Although the State objected to the instruction the court should determine whether there was at trial, it concedes on appeal that the sufficient evidence, viewed in the light most instruction accurately states the law. The PIK favorable to the defendant or the requesting Committee, however, continues to party, that would have supported the recommend that a separate instruction on instruction; and (4) finally, if the district expert opinion testimony not be given. court erred, the appellate court must determine whether the error was harmless, The district judge did give the standard utilizing the test and degree of certainty set instruction on witness testimony, which forth in State v. Ward." states: "It is for you to determine the weight and credit to be given the testimony of each Analysis witness. You have a right to use common knowledge and experience in regard to the The requested instruction, based on the Tenth matter about which a witness has testified." Circuit Court of Appeals Pattern Criminal Neither party objected to this instruction. The Jury Instruction 1.17, reads as follows: State contends that this instruction adequately covers the substance of the "During the trial you heard the requested instruction. testimony of who expressed opinions concerning . In some This court has frequently emphasized the cases, such as this one, scientific, wisdom of following the PIK Committee technical, or other specialized recommendations. On the other hand, we knowledge may assist the jury in have also said that the failure to use the exact understanding the evidence or in language of a PIK instruction is not fatal. determining a fact in issue. A witness

160 Moreover, a district court should not hesitate "The instruction accurately stated the to modify or add to pattern instructions where law as it stands in Kansas. The jury appropriate in a particular case. should weigh expert witness testimony in the same manner it In State v. Willis, this court considered the weighs all testimony. . . . giving of an expanded instruction on witness credibility. The Willis court concluded there "In addition, Adams' jury would not was no clear error in the giving of the reasonably have been misled by the expanded instruction but noted "it would instruction. Had the first paragraph of certainly have been the better practice to give the hybrid stood alone, the jury still an instruction along the lines of PIK Crim. 2d would have been instructed as to how 52.09." The expert witness instruction to assess credibility of all witnesses, requested here, although contained in a regardless of expertise." separate instruction, was, in effect, an expanded version of the witness credibility But this case highlights that there is a instruction. fundamental difference between an ordinary witness' testimony as to the facts of a case and Then, in State v. Hunt, this court stated that it an expert's opinion testimony as to what those "has continually disapproved the giving of an facts mean. Indeed, opinion evidence from expanded version of the credibility experts is admissible precisely because the instruction," although it had also continually jurors' common knowledge and experience held that to do so was not clearly erroneous. would not permit them to properly Later, in State v. Adams, the district judge understand the circumstances of the case. provided a witness credibility instruction "Where the normal experience and based on PIK Crim. 3d 52.09 that also qualifications of jurors permit them to included wording from a civil pattern jury draw proper conclusions from given facts instruction regarding expert witnesses. The and circumstances, expert conclusions or added language, like the language in the opinions are not necessary." Yet, the general federal instruction Kahler requested, instruction in PIK Crim. 3d 52.09 recites, in instructed the jury that testimony of experts part: "You have the right to use common was to be considered like any other testimony knowledge and experience in regard to the and should receive the same weight and matter about which a witness has testified." If credit as the jury deemed it entitled to when a witness has been permitted to give an expert viewed in connection with all the other facts opinion because the subject matter is beyond and circumstances. The defendant alleged the the common knowledge and experience of instruction was erroneous because the district the jurors, how does a juror use his or her court did not follow the PIK Committee's nonexistent common knowledge and recommendation not to give an expert experience to assess the expert's testimony? witness instruction in criminal trials. The Adams court observed: Moreover, an expert witness is permitted to share his or her opinion with the jury only

161 after the trial judge has reached the legal Mental disease or defect is not conclusion that the witness is, indeed, an otherwise a defense." expert on the topic about which he or she is going to opine. The regular witness At trial, Kahler based his defense on mental credibility instruction does not clarify for the disease or defect. He filed a motion alleging jurors that they may reject the expert opinion that the statute unconstitutionally deprived even though it has been stamped with the him of the ability to assert a defense based on judge's imprimatur. In short, there is nothing insanity. The district court denied the motion, generic about opinion testimony from expert and the jury was instructed in accord with the witnesses, and the jury's assessment of the statute. On appeal, Kahler continues to assert credibility of that testimony should not be left his constitutional challenge. to the insufficient direction contained in the Standard of Review generic PIK instruction. Whether a statute is constitutional raises a Consequently, the district court erred when it question of law over which this court refused to give the defense's requested exercises unlimited review. instruction on expert witness credibility because the instruction was legally appropriate and factually supported. But that Analysis does not end the discussion; the error is subject to a harmlessness analysis. In that Before the enactment of K.S.A. 22-3220, regard, notwithstanding that the legal the M'Naghten rule was the proper test for the substance of the requested instruction was defense of insanity in Kansas. not adequately covered by the general The M'Naghten rule provided that instructions that were given, there is no reasonable possibility that the error affected "the defendant is to be held not the jury's guilty verdict. In other words, the criminally responsible (1) where he error was harmless. does not know the nature and quality of his act, or, in the alternative, (2) IV. CONSTITUTIONALITY OF K.S.A. 22- where he does not know right from 3220 wrong with respect to that act. Under the 'right and wrong' test of criminal For his fourth issue, Kahler contests the insanity, it must be proved that at the constitutionality of K.S.A. 22-3220. The material time the accused did not statute provides: know that what he was doing was contrary to law." "It is a defense to a prosecution under any statute that the defendant, as a But the Kansas legislature abandoned result of mental disease or defect, the M'Naghten rule through enactment lacked the mental state required as an of K.S.A. 22-3220, which became effective element of the offense charged. January 1, 1996. The statute adopted what is

162 known as the "mens rea approach." The whether Idaho's modification of the insanity mens rea approach allows evidence of mental defense is consistent with the Fourteenth disease or defect as it bears on the mental Amendment's Due Process Clause. As part of element of a crime but abandons lack of its discussion, the dissent cited Bethel and ability to know right from wrong as a noted that Kansas is one of only four states defense. Kahler argues that by doing so the that have adopted the mens rea approach. statute violates the Due Process While we are cognizant of the three justices' Clause because it offends a principle of position, the Delling dissent has no effect on justice so rooted in the traditions and our Bethel decision. conscience of our people as to be ranked as fundamental. The parties have thoroughly set out the arguments and cases in their briefs. The same arguments made by Kahler were Nonetheless, Kahler has offered no new considered and rejected by this court in State reason to reconsider the arguments v. Bethel. The Bethel court conducted a previously and thoughtfully rejected by this thorough review of the pertinent decisions of court. Thus a review of those arguments or the United States Supreme Court and other of Bethel is not warranted. states that had considered the issue. Ultimately, the Bethel court concluded that "K.S.A. 22-3220 does not violate the V. LESSER INCLUDED OFFENSE defendant's right to due process under the INSTRUCTION ON FELONY MURDER United States or Kansas Kahler did not request an instruction that Constitutions." Kahler relies on Finger v. would have permitted the jury to convict him State, in which the Nevada Supreme Court of felony murder, as a lesser included offense held legal insanity is a fundamental principle of capital murder. He claims on appeal that it of the criminal law of this country. But was clearly erroneous for the district court to the Bethel court considered and rejected the fail to give that lesser included offense reasoning of the Nevada Supreme Court instruction on its own. in Finger, and we adhere to our Bethel decision. Standard of Review

Although Kahler has added no new To determine whether the district court's arguments to those this court considered and failure to sua sponte give an unrequested jury rejected in Bethel, he directs our attention to instruction was clearly erroneous, the a written dissent from a denial of certiorari by reviewing court must first determine whether three justices in Delling v. Idaho. The dissent there was any error at all. "To make that was critical of the mens rea approach because determination, the appellate court must it allows conviction of an individual who had consider whether the subject instruction was no capacity to know that what he or she was legally and factually appropriate, employing doing was wrong. The dissent would have an unlimited review of the entire record." granted the petition for certiorari to consider

163 Analysis retroactively, foreclosing Gleason's claim that the district court erred in Kahler's brief was filed after this court's refusing Gleason's request for a decision in State v. Cheever, held that felony felony-murder instruction. Further, murder was a lesser included offense of the 2013 amendments do not violate capital murder and, consequently, that an Gleason's constitutional right to due instruction to that effect should be given in a process, as interpreted in Beck, nor capital case where warranted by the evidence. does retroactive application violate Although no felony murder instruction was the prohibition against ex post facto requested or given in Kahler's case, he argued laws." in his opening brief, pursuant to Cheever, that one was warranted and that it was clear error In State v. Carr, this court held the ruling not to give it. in Gleason eliminated any need to address the argument that a lesser included offense By the time the State filed its responsive instruction for felony murder was supported brief, the legislature had amended K.S.A. by the evidence admitted at trial. And, 2012 Supp. 21-5402, in response to Cheever, subsequently in Cheever, again considering to specifically provide that felony murder the same arguments, this court held "[t]he was not a lesser included offense of capital reasoning of the Gleason and Carr cases murder. While the State raised a number of applies with equal force and effect to this case arguments, it primarily argued that K.S.A. and requires us to conclude that Cheever was 2016 Supp. 21-5402(d) applied retroactively not entitled to a felony-murder lesser by its specific terms to overcome Kahler's included offense instruction. The trial judge argument. Anticipating Kahler's reply, the did not err when he did not give one." State also argued that K.S.A. 2016 Supp. 21- 5402(d) was neither unconstitutional under Gleason controls this case and dictates the the Ex Post Facto Clause of the United States conclusion that the district judge did not err Constitution nor precluded by due process by failing to give a felony-murder lesser under Beck v. Alabama. included offense instruction because such an instruction was not legally appropriate. As anticipated, Kahler's reply brief focused on arguments against the constitutionality VI. LIMITATIONS ON DEFENSE VOIR DIRE of K.S.A. 2016 Supp. 21-5402(d) based on Beck and the Ex Post Facto Clause. Two Kahler alleges the district court denied him a months after the reply brief was filed, this fair trial by prohibiting his counsel from court considered and decided the same questioning prospective jurors during voir arguments in State v. Gleason. dire about their views on the death penalty.

Gleason concluded: Standard of Review/Analytical Framework "K.S.A. 2013 Supp. 21-5402(d), by its express language, applies

164 The purpose of voir dire is to enable the question venire members individually when parties to select jurors who are competent and their in-court answers indicated a need to without bias, prejudice, or partiality. The delve into matters outside the hearing of the nature and scope of voir dire examination is rest of the panel. At oral argument, counsel entrusted to the sound discretion of the trial for Kahler acknowledged that Kahler's trial court; however, appellate tribunals have the counsel was not prevented from making an duty to make an independent evaluation of individual inquiry of each venire person's the circumstances of voir dire in determining death penalty views. In fact, trial counsel whether the district court has taken sufficient never made a request to question any of the measures to ensure the accused is tried by an venire members individually. Consequently, impartial jury free from outside while an absolute prohibition against inquiry influences. An adequate voir dire is essential in front of the rest of the venire panel might to protect a defendant's right to an impartial be an unnecessary precaution against the risk jury guaranteed by the Fifth and Sixth of tainting the entire panel, it was not error Amendments to the United States here. Constitution. VII. CUMULATIVE ERROR DURING THE We will find an abuse of discretion if the trial GUILT PHASE court has unconstitutionally restricted a capital defendant's questioning during voir Kahler claims that his guilt phase convictions dire. Mindful that this is a capital case in must be reversed because cumulative trial which the jury has imposed the death penalty, errors denied him a fair trial. we have carefully examined the record of the district court's conduct of voir dire. Simply Standard of Review/Analytical Framework put, we find no support for Kahler's argument "'Cumulative trial errors, when considered in the record. collectively, may require reversal of the The district judge consistently took the defendant's conviction when the totality of position that Kahler's counsel could not circumstances substantially prejudiced the question prospective jurors about their views defendant and denied the defendant a fair on the death penalty in the presence of other trial.'" No prejudicial error may be found venire members. Clearly, the district judge under the cumulative error doctrine if the was concerned that an individual panel evidence against the defendant is member's comments could prejudice other overwhelming. members and wished to avoid a situation in "For errors to have a cumulative effect that which it might become necessary to transcends the effect of the individual errors, disqualify an entire panel. But discussions there must have been more than one between counsel and the district judge prior individual error. [Citation omitted]." We to commencement of trial, along with the have agreed with Kahler that the trial judge written order covering the conduct of voir should not have told the jury, "I normally dire, made clear that counsel were entitled to

165 don't do this," before giving PIK Crim. 4th below, that motion did not set out a 50.070 after opening statements and that the categorical proportionality argument based trial judge erred in refusing to give the expert on mental illness. Nevertheless, this court has witness instruction requested by the held that a categorical proportionality defense. In the process of our review, we also challenge under the Eighth Amendment may noted an erroneous ruling by the district court be raised for the first time on appeal. on an objection the State lodged during defense counsel's closing argument. In short, there was more than one trial error. Standard of Review/Types of Categorical Challenges But the touchstone is whether the defendant received a fair trial, not whether he received "A categorical proportionality challenge a perfect trial. Moreover, we have declined to under the Eighth Amendment implicates find reversible error under the cumulative questions of law, and this court has unlimited error rule where "'the evidence is review." overwhelming against the defendant.'" On "The United States Supreme Court the record before us, we are firmly convinced identifies three subcategories of beyond a reasonable doubt that the guilty categorical proportionality verdict would not have changed if the errors challenges. The first considers the had not been committed. nature of the offense, such as a We also note that the errors identified during prohibition on capital punishment for the guilt-phase proceeding are not the type nonhomicide crimes against that we would expect to impact individuals. The second considers the the sentencing determination when the same characteristics of the offender, such jury decides both guilt and sentence. as a categorical rule prohibiting the Accordingly, we do not revisit this error in death penalty for juveniles. The third, our penalty-phase discussion. which was first recognized in [***57] Graham, combines the VIII. EIGHTH AMENDMENT CATEGORICAL two because it 'implicates a particular CHALLENGE TO DEATH PENALTY type of sentence as it applies to an entire class of offenders who have The Eighth Amendment to the United States committed a range of crimes.' 560 Constitution prohibits the infliction of "cruel U.S. at 61." and unusual punishments." Kahler claims that a sentence of death violates that Analysis constitutional right when it is imposed upon Kahler's claim fits within the second a severely mentally ill person. subcategory of offender characteristics. He Although Kahler relies on a motion he filed proposes a categorical rule prohibiting in the district court as having raised this issue the death penalty for offenders who were

166 severely mentally ill at the time of their determinative.' And in State v. crimes. Mossman, we observed:

In analyzing claims under this second "'In accordance with the category, the United States Supreme Court constitutional design, "the employs a two-part test: task of interpreting the Eighth Amendment remains [the "The Court first considers 'objective Court's] responsibility." indicia of society's standards, as [Citation omitted.] The expressed in legislative enactments judicial exercise of and state practice' to determine independent judgment whether there is a national consensus requires consideration of the against the sentencing practice at culpability of the offenders at issue. Next, guided by 'the standards issue in light of their crimes elaborated by controlling precedents and characteristics, along with and by the Court's own understanding the severity of the punishment and interpretation of the Eighth in question. [Citations Amendment's text, history, meaning, omitted.] In this inquiry the and purpose,' the Court must Court also considers whether determine in the exercise of its own the challenged sentencing independent judgment whether the practice serves legitimate punishment in question violates the penological goals.' Constitution. "Atkins and Roper both identify We recently considered and rejected a nearly retribution and deterrence as the identical argument in Kleypas. In fact, 'legitimate penological goals' served Kahler's brief is, with the exception of those by the imposition of the death penalty portions pertaining directly to Kahler on those who commit the worst himself, nearly word for word the same brief crimes. Both conclude that the that was submitted on this issue in Kleypas. characteristics of juveniles and the mentally retarded, respectively, In Kleypas, we said that the defendant had make offenders in those categories not shown the kind of legislative consensus less culpable than the 'average that the Supreme Court relies upon in the first murderer.' And being less culpable part of its test. Then, in exercising our and less amenable to deterrence, the independent judgment under the second part death penalty is inappropriate for of the test, we opined as follows: their crimes. "As to the second-prong of the test, "In support of his argument, Kleypas we explained in Williams that simply states '[t]he culpability of the 'community consensus is entitled to severely mentally ill is diminished in great weight but it is not

167 the same manner as juveniles and the penalty despite insufficient mentally retarded.' He cites language culpability.’ And in Atkins, the Court quoted from the ABA noted that clinical definitions of recommendation report to illustrate mental retardation shared common that some severe disorders result in features which ultimately bore on the hallucinations or delusions. But the determination of culpability. ABA report itself recognizes that diagnosis alone is not a sensible basis "Mental illnesses present less for the exemption and, consequently, discernable common characteristics a case-by-case determination will be than age or mental retardation. required. The report recognizes Caselaw relating to the that Atkins left the definition of implementation of Ford v. 'mental retardation' to the states. The Wainwright, and Panetti v. report continues: Quarterman, illustrates the difficulty in defining a discernable standard "'Atkins held the death penalty relating to mental illness. As the excessive for every person ABA standard recognizes, case-by- with mental retardation, and case evaluations would be necessary; the Supreme Court therefore it follows that the level of culpability dispensed with a case-by-case will vary on a case-by-case assessment of responsibility. basis. While we recognize that some However, for the disorders mental illnesses may make a covered by this . . . part of the defendant less culpable and less likely Recommendation, preclusion to be deterred by the death penalty, of a death sentence based on often such illnesses can be treated and diagnosis alone would not be may not manifest in criminal sensible, because the behavior. symptoms of these disorders are much more variable than "We also note the protections already those associated with in place, which protect the retardation or the other incompetent from trial and the disabilities covered by the 'insane' from execution. In addition, a Recommendation's first defendant may present a defense to paragraph.' the crimes based on a lack of capacity. Finally, as Kleypas did "In contrast, in Roper, the United here, mental illness can be asserted as States Supreme Court noted that '[t]he a mitigator. While we recognize a differences between juvenile and distinction between disqualification adult offenders are too marked and and mitigation, we also recognize that well understood to risk allowing a presenting mental illness as a youthful person to receive the death

168 mitigator allows the jury to consider channel the jury's discretion as required by culpability. the federal and state constitutions. He argues that the "killing or creating a great risk of "Given these variables and death to more than one person" factor is considerations, in the exercise of our duplicative of the elements needed to prove independent judgment, we reject a capital murder. He argues that the "heinous, categorical prohibition based on the atrocious, and cruel" factor is vague and broad classification of mental illness, duplicative. even as defined by the ABA standard, in favor of individualized Standard of Review assessments through the sentencing proceeding. We have confidence that The constitutionality of a statutory Kansas juries can weigh a defendant's aggravating circumstance is a question of law mental state at the time of the crime subject to unlimited review. as a mitigating factor for consideration in the decision of whether to return a death penalty Analysis verdict. Kahler acknowledges in his brief that this "We conclude that Kleypas fails to court has decided the questions raised in this make the showing necessary under issue against him. Kahler has raised no new either prong of the two-part arguments nor pointed to any caselaw which categorical proportionality analysis. would provide a basis for reconsideration of We, therefore, deny his Eighth those decisions, and we decline to do so. Amendment categorical proportionality challenge and X. SUFFICIENCY OF THE EVIDENCE OF AN conclude the Eighth Amendmentdoes AGGRAVATING CIRCUMSTANCE not categorically prohibit the For his final issue, Kahler argues there was execution of offenders who are insufficient evidence to support the jury's severely mentally ill at the time of finding of the second aggravating factor their crimes." argued by the State, i.e., that the crime was We find this issue controlled by our decision committed in an especially heinous, in Kleypas and see no reason to revisit that atrocious, or cruel manner. holding.

IX. CONSTITUTIONALITY OF THE Standard of Review AGGRAVATING CIRCUMSTANCES The standard of review of the sufficiency of Kahler argues the two aggravating the evidence to support an aggravating circumstances relied upon by the State to circumstance was set out by this court justify the death penalty failed to properly in Kleypas, to-wit:

169 “The standard of review on appeal as especially heinous, atrocious or cruel to the sufficiency of evidence manner. As used in this instruction, regarding an aggravating the following definitions apply: circumstance is whether, after review of all the evidence, viewed in the light • 'heinous' means extremely wicked most favorable to the prosecution, the or shockingly evil; appellate court is convinced that a • 'atrocious' means outrageously rational factfinder could have found wicked and vile; and the existence of the aggravating circumstance beyond a reasonable • 'cruel' means pitiless or designed to doubt." inflict a high degree of pain, utter indifference to, or enjoyment of the Analysis sufferings of others. At the penalty hearing, the State relied in part "In order to find that the crime of on the evidence it had presented at the guilt capital murder is committed in an phase trial. The State also put the coroner, Dr. especially heinous, atrocious, or cruel Erik Mitchell, back on the stand to largely manner, the jury must find that the repeat his testimony from the guilt phase perpetrator inflicted serious mental concerning the bullet wounds suffered by anguish or serious physical abuse each of the victims. With respect to each before the victim['s] death. Mental victim, Mitchell described where each bullet anguish includes a victim's entered the body, how the wound or wounds uncertainty as to her ultimate fate." would have affected the victim's awareness and her ability to feel pain, and, ultimately, We have often held that shooting deaths are how they would have brought about her not inherently heinous, atrocious, or cruel. death. He testified that all of the women We compiled a number of those cases would have suffered the severe pain of being in State v. Baker. shot. He also concluded that all of them retained awareness long enough to know of In Baker, we also reviewed a number of cases the other shootings going on around them and in which this court had found shooting deaths to be cognizant of their own possible to be especially heinous, atrocious, or impending death. cruel. We concluded in Baker that the "common thread" running between those The jury was instructed in accord with PIK cases in which we held a shooting death had Crim..), on the heinous, been especially heinous, atrocious, or cruel atrocious, [***65] or cruel aggravating was evidence of the infliction of mental circumstance: anguish upon the victim prior to death.

"That the defendant committed the A more recent case is factually similar to this crime of capital murder in an case. In State v. Hayes, defendant Terry Ray

170 Hayes was married to Tiffani Hayes for a conclude that Kahler's prior behavior little over a year. In April 2010, Tiffani contributed to Karen's mental anguish when moved out, and shortly afterward, Hayes he walked into Wight's kitchen with a gun filed for a divorce. He experienced and shot her. depression and suicidal ideations following the breakup. There was evidence that Hayes In addition to the evidence above, there is continually contacted Tiffani electronically, clear evidence from the Life Alert recording at work and elsewhere, that he accused her of that Kahler methodically went through the infidelity, and that he had told others he house shooting each of the women in turn. would kill her. On the day of the murder, The coroner's testimony established that the Hayes lured Tiffani to his home by telling her bullet wounds to each of the victims were not he had some of her property that she needed immediately fatal and would have left each to pick up. Tiffani arrived with a friend and victim conscious long enough to suffer the approached Hayes who was in the physical pain of her injuries in addition to the driveway. The friend witnessed Hayes mental anguish of her impending death. The confront Tiffani, heard Tiffani scream, and evidence clearly established that Wight and then saw Tiffani being chased down as she Lauren were aware of others being shot tried to escape from Hayes who had a gun. before them and lived long enough to suffer Hayes shot Tiffani in the back of the head seriously from their own wounds and to fear when he caught up to her. In summing up the for their own lives. The Life Alert recording evidence supporting the aggravator, this established beyond question that Lauren court said there was "evidence that Hayes had suffered severe mental anguish as her father threatened Tiffani in the past, that he lured went through the house shooting her family her to his residence in order to kill her, and members as she lay mortally wounded that he killed Tiffani as she tried to run away fearing for her own life. Viewing this from him." evidence in the light most favorable to the prosecution, we easily conclude that a Here, there was evidence that Kahler engaged rational factfinder could have found beyond in similar electronic stalking in which he sent a reasonable doubt that Kahler committed the emails to Karen, to Karen's lover, and to murders in an especially heinous, atrocious, others. There was evidence Kahler was or cruel manner. severely depressed and was obsessed with Karen's leaving. There was also evidence of We applied the same standard of review a prior physical threat to Karen. Karen had in Gleason, where we recognized our previously had Kahler arrested for battering "independent duty to consider the sufficiency her, and she was aware of his obsessive of the evidence to support the jury's findings behavior. In Hayes, the district court relied on aggravating circumstances." on similar evidence to establish that Tiffani Kahler does not contest the jury's finding that had reason to fear Hayes and, as a result, Kahler killed or created a great risk of death suffered mental anguish at the time of her to more than one person. But under our death. As in Hayes, it is reasonable to

171 independent duty to determine "whether The comment in question came after defense the evidence supports the findings that an counsel's opening statement. Recall there aggravating circumstance or circumstances were three objections to defense counsel's existed," we have no problem determining opening statement with one admonition to that the evidence was sufficient to support defense counsel being overheard by the jury. this aggravating circumstance. With our And after counsel finished, the district judge determination above that sufficient evidence gave an admittedly proper preliminary jury supported the heinous, atrocious, or cruel instruction, saying: aggravating circumstance, we now must determine whether the evidence supports the "All right. Ladies and gentlemen of finding that "mitigating circumstances were the jury, I'm going to read an insufficient to outweigh the aggravating instruction to you at this time. I circumstances." Again, we have no difficulty normally don't do this, but I am going in determining that the jury's weighing to ask that you listen carefully. This is determination and sentencing verdict were one of the instructions that will be supported by the evidence. given to you later but I wish to give it to you now also. That statement is: CONCLUSION Statements, arguments, and remarks of counsel are intended to help you in Kahler's conviction of capital murder understanding the evidence and in under K.S.A. 21-3439(a)(6) and his sentence applying the law, but they are not of death are affirmed. evidence. If any statements are made that are not supported by evidence,

they should be disregarded." BILES, Senior Judge, concurring in part and (Emphasis added.) dissenting in part: Kahler argues this passing comment about I agree with the majority's decision to affirm what normally occurs in a typical trial, along James K. Kahler's convictions and sentences with its proximity to his counsel's opening but disagree with one conclusion reached by statement and the State's objections, shows the majority. I would not characterize as judicial bias requiring reversal of Kahler's misconduct the trial judge's aside that "I convictions. The majority does not go that normally don't do this" before giving the far, but it tags the comment as judicial pattern jury instruction about remarks of misconduct. I disagree. counsel. I think the majority reaches the wrong conclusion and in the process does a When addressing the merits of this alleged disservice to the trial bench. It slaps a judicial misconduct—"I normally don't do "judicial misconduct" label on what, at worst, this"—this court must consider the facts and should be an opportunity for a simple circumstances surrounding the alleged "teaching moment" to caution judges about misconduct to decide whether the remark their banter with juries. manifested bias that impaired the trial's

172 fairness. In this case, the trial judge had a Indulging the majority's willingness to tough job. He was coping with a particularly speculate, one obvious answer arises because heinous, high-profile death penalty case these jurors knew they were hearing an involving a quadruple homicide. Two abnormal, highly charged, multiple murder victims were young girls. case in which an individual's life hung in the balance. And given that, they would have far In what was obviously an effort to maintain more readily associated the judge's comment focus and order, the trial judge sandwiched that he did not "normally" give a particular both counsel's opening statements between instruction with the serious business at hand appropriate preliminary pattern jury and what was most assuredly on everyone's instructions. Immediately before the State's minds, i.e., the grisly case being heard. opening remarks, the trial judge instructed Instead, the majority steadfastly conjectures jurors to consider only the testimony and that jurors "would" see the remarks exhibits admitted into evidence. Immediately "undoubtedly" as targeting the defense in after the defense's remarks, the trial judge some critical way. That conclusion is too cautioned the jury as recited above. farfetched under the facts and circumstances presented. It is impossible for me to understand how the defense can cry foul when what the trial judge I disagree with the majority's characterization advised the jury about included a comment of this remark as judicial misconduct and that explained the State and defense counsel's error. But I agree if the comment was error, it purpose in giving their openings was to help was harmless beyond a reasonable doubt. jurors understand the evidence and application of the law. Surely, no one would JOHNSON, Judge, dissenting: take the State seriously if it objected that its opening statement was diminished because it I dissent. To effect synergy with the majority, was preceded by the judge telling the jury to I will address each of its issues in turn, consider only the testimony and exhibits— including those with which I agree, followed effectively inviting the jury to disregard what by the unassigned error of unconstitutionally it was about to hear. And the instruction that inflicting the cruel and/or unusual followed the opening statements here can punishment of death. objectively be seen as validating the purpose of opening statements, rather than degrading ISSUE #1: PROSECUTORIAL ERROR a particular speaker's integrity. I agree with the majority's holding that it is What we are left with is the trial judge's aside within the prosecutor's permissible latitude to that he "normally" did not give the later object on the ground that the defense's instruction, but wanted the jury to hear it closing argument is about to go beyond the then, and would give it again later. What admitted evidence, even where the objection would a reasonable person take from this? is based on the prosecutor's erroneous understanding of the law. I disagree,

173 however, with the majority's suggestion that instruction was specifically aimed at the bad faith or ill will can never play any role in credibility of the defense opening statement. the error analysis. I would submit that a prosecutor does not have the wide latitude to With respect to the judge's questioning of the intentionally seek to lure the trial court into deputy, I would concur with the majority's erroneously excluding permissible defense determination that, although the better arguments. Such bad faith conduct, practice would have been for the district manifesting ill will, does, indeed, constitute judge to ask the prosecutor to seek prosecutorial error. But I do not discern that clarification of the testimony, there was no the prosecutor in this case crossed that line. misconduct here. The judge's questions did not suggest partiality toward the State. ISSUE #2: JUDICIAL MISCONDUCT Indeed, the questioning could be viewed as having cast some doubt on the deputy's I agree with the majority on its assessment of thoroughness or expertise. the judge's remarks to the third panel of venire persons warning against blurting out The alleged judicial misconduct set forth in personal opinions. Although a more II.E. is a corollary to the alleged prosecutorial articulate admonition would have included error in the first issue. To reiterate, after the the clarification that panel members could prosecutor objected to defense counsel's individually advise the court of their stating what the male voice was saying on the respective personal concerns about the death Life Alert tape, the district judge ruled: "I penalty outside the presence of the others that think it's improper. You cannot say what you omission in this context did not rise to the think is on the tape." Kahler contends that it level of misconduct. was misconduct for the judge to sustain the objection and it was also misconduct for the Likewise, I agree with the majority that it judge to state in front of the jury that the would have been better if the venire panel had defense argument was improper. not heard the trial judge ask the defense to pick up the pace. But I discern no judicial I agree with the majority's assessment that the misconduct. district court's ruling on the State's objection during the defense closing argument was Further, I agree with the majority's finding of legally infirm and constituted an unassigned error regarding the third alleged incident of trial error. But, as the majority correctly judicial misconduct during which the district states, Kahler had to show more than an judge told the jury that he normally did not erroneous ruling on an objection to establish give the instruction on counsel's statements his assigned error of judicial misconduct. He not being evidence after the opening did not do so here, even with the judge's use statements. The majority correctly discerns of the word "improper" to describe the legal that, in context, the judge's comment brought status of the argument. special attention to the instruction and the jury could have concluded that the extra

174 Kahler's complaint about the judge's remarks I agree with the majority that the district court concerning jury questions during erred in refusing to give the requested deliberations is similarly miscast as judicial instruction on expert witness credibility, but misconduct. Even if the judge's comments that the error standing alone did not affect the were erroneous, Kahler does not explain how jury's guilt-phase verdict. discouraging jury questions would inevitably result in bias, prejudice, or partiality that was ISSUE #4: CONSTITUTIONALITY OF K.S.A. adverse to the defense. One can imagine that 22-3220 a jury could have some questions which, if left unresolved, would prejudice the State. In rejecting Kahler's constitutional challenge Consequently, although I view the judge's to this state's elimination of the insanity remarks to be ill-advised and erroneous, defense, in favor of a mens rea approach, the especially in a death penalty case, I cannot majority leans heavily on its assessment that say they rise to the level of being misconduct. Kahler adds nothing new to the arguments that were rejected in State v. Bethel. While In sum, I concur with the majority that the stare decisis is a valid tack, the majority record does not support the defendant's claim conveniently overlooks a significant that the district judge engaged in a pattern of distinction between this case and Bethel. conduct that manifested bias, prejudice, or Although Bethel was convicted of capital partiality against the defense. But defendant's murder, the death penalty was not arguments on this issue point out two involved. "Pursuant to an agreement of the unassigned errors, i.e., the district court parties, Bethel waived his right to a jury trial, erroneously sustained the State's objection the case was tried to the bench on stipulated during the defense closing argument, and the facts, and the State did not pursue the death district court erroneously discouraged the penalty." jury from exercising its right, after retiring for deliberations, "to be informed as to any Recently, we acknowledged that this court is part of the law or evidence arising in the supposed to employ a higher degree of case." scrutiny in a death penalty case. We stated:

Individually, the judge's erroneous "This court has, in several cases, instruction following defense counsel's noted that issues in a death penalty opening statement and the two unidentified review are subject to a heightened errors would not have changed the jury's reliability standard.” guilty verdict. I discuss their cumulative "A sentence of death is different from prejudicial effect in Issue #7. any other punishment, and

accordingly there is an increased need ISSUE #3: REQUESTED INSTRUCTION ON for reliability in the determination EXPERT WITNESSES that death is the appropriate sentence. “

175 At the very least, this court has the obligation wit: (1) Giving the jury instruction after to independently analyze whether the opening statements with accompanying procedure of replacing the insanity defense remarks about it being unusual; (2) sustaining with the mens rea approach undermines the the State's objection during the defense reliability of the jury's determination to closing argument, thereby precluding impose the death penalty. One might question argument on the admitted Life Alert tape whether a juror would be as likely to vote to recording; (3) discouraging the jury from kill a defendant who did not know that his or submitting questions during its deliberations; her murderous act was wrong. and (4) refusing to give the legally appropriate and factually supported expert ISSUE # 5: LESSER INCLUDED OFFENSE witness instruction proffered by the defense. INSTRUCTION ON FELONY MURDER Notwithstanding the existence of more than The majority follows recent precedent to one error, I would not hold that their opine that the legislature retroactively collective effect requires reversal of the eliminated felony murder as a lesser included guilty verdict. But I strongly disagree with offense of capital murder. One can certainly the majority's determination that the guilt- make a logical argument for the proposition phase errors can be ignored when considering that eliminating felony murder as a lesser the same jury's penalty-phase decision. Our offense of capital murder effectively changes heightened reliability obligation mandates the definition of the crime of capital murder, that we not approve a sentence of death that and, although the legislature is entitled to is obtained through erroneous procedures. I change the definition of a crime, it cannot would hold that the errors made in this case redefine the crime after it is committed. undermined the reliability of the jury's death Nevertheless, that is the settled law in this sentence, and I would require that it be state now. vacated and remanded for a new sentencing trial. A death sentence that fails the unreliable ISSUE #6: LIMITATIONS ON DEFENSE VOIR procedures test cannot pass constitutional DIRE muster, even if the majority believes that a I have no quibble with the majority's holding subsequent trial would yield the same result. that the district court did not impermissibly limit the defense's voir dire of the jury panels ISSUE #8: EIGHTH AMENDMENT given the record before the court and defense CATEGORICAL CHALLENGE TO DEATH counsel's failure to conduct individual voir PENALTY dire of venire members. The majority relies exclusively on Kleypas, ISSUE #7: CUMULATIVE ERROR DURING to reject Kahler's argument that it is cruel and THE GUILT PHASE unusual punishment under the Eighth Amendment to the United States I discern that the following judicial acts Constitution for the State to kill a person who constitute multiple guilt-phase trial errors, to- was severely mentally ill at the time of the

176 capital murder. I did not specifically address gets his 'just deserts'—the severity of this issue in my Kleypas dissent, but I do so the appropriate punishment now. necessarily depends on the culpability of the offender. Since Gregg, our Fifteen years ago, in Atkins v. Virginia, the jurisprudence has consistently United States Supreme Court construed and confined the imposition of the death applied the Eighth Amendment "in the light penalty to a narrow category of the of our 'evolving standards of decency,'" and most serious crimes. For example, concluded that imposing the death penalty on in Godfrey v. Georgia, we set aside a a mentally retarded offender was excessive death sentence because the and "that the Constitution 'places a petitioner's crimes did not reflect 'a substantive restriction on the State's power to consciousness materially more take the life' of a mentally retarded offender." "depraved" than that of any person While recognizing that a preferred label is guilty of murder.' If the culpability of intellectual disability, see Hall v. Florida, for the average murderer is insufficient to clarity I will use the terms employed justify the most extreme sanction in Atkins and Kleypas, i.e., mental available to the State, the lesser retardation and mentally retarded. culpability of the mentally retarded offender surely does not merit that Part of the rationale for Atkins' holding was form of retribution. Thus, pursuant to that the Court seriously doubted that either of our narrowing jurisprudence, which the two justifications for the death penalty seeks to ensure that only the most that it had recognized—retribution and deserving of execution are put to deterrence—could be applied to mentally death, an exclusion for the mentally retarded offenders. The Court opined that retarded is appropriate. "[u]nless the imposition of the death penalty on a mentally retarded person 'measurably "With respect to deterrence—the contributes to one or both of these goals, it "is interest in preventing capital crimes nothing more than the purposeless and by prospective offenders—'it seems needless imposition of pain and suffering," likely that "capital punishment can and hence an unconstitutional punishment.'" serve as a deterrent only when murder is the result of premeditation and In reaching its conclusion that it was "not deliberation,"' Exempting the persuaded that the execution of mentally mentally retarded from that retarded criminals will measurably advance punishment will not affect the 'cold the deterrent or the retributive purpose of the calculus that precedes the decision' of death penalty," Atkins, the Court engaged in other potential murderers. Indeed, the following analysis: that sort of calculus is at the opposite "With respect to retribution—the end of the spectrum from behavior of interest in seeing that the offender mentally retarded offenders. The theory of deterrence in capital

177 sentencing is predicated upon the reasoning, or to control impulses," as well as notion that the increased severity of not being amenable to deterrence. I fail to the punishment will inhibit criminal grasp how a severely mentally ill person actors from carrying out murderous possessing those same characteristics is not conduct. Yet it is the same cognitive in the same less-morally-culpable category as and behavioral impairments that the mentally retarded offender. If a person is make these defendants less morally incapable of understanding the nature and culpable—for example, the quality of their murderous act and/or did not diminished ability to understand and know that the act was wrong, does it matter process information, to learn from whether the cause of the cognitive deficiency experience, to engage in logical is labeled mental retardation or chronic reasoning, or to control impulses— mental illness? The point is that, when that also make it less likely that they executing a severely mentally ill person will can process the information of the not "measurably advance the deterrent or the possibility of execution as a penalty retributive purpose of the death penalty," it and, as a result, control their conduct becomes "nothing more than the purposeless based upon that information. Nor will and needless imposition of pain and exempting the mentally retarded from suffering." execution lessen the deterrent effect of the death penalty with respect to Kleypas strained to distinguish severe mental offenders who are not mentally illness by declaring that the condition retarded. Such individuals are presents "less discernable common unprotected by the exemption and characteristics than age or mental will continue to face the threat of retardation." The apparent suggestion was execution. Thus, executing the that the courts might have to work more mentally retarded will not measurably diligently to identify which mentally ill further the goal of deterrence." persons are less culpable. That argument is unpersuasive, if for no other reason than the The Kleypas majority "recognize[d] that notion that a person's life—even a murderer's some mental illnesses may make a defendant life—should not be taken away without this less culpable and less likely to be deterred by court's heightened scrutiny, even if that takes the death penalty." Notwithstanding the self- more effort. serving equivocation in that recognition, it nevertheless points out the logical fallacy in But, more importantly, I do not accept the categorically protecting the mentally retarded premise. This state has decades of but not the severely jurisprudence applying the M'Naghten rule. mentally ill. Atkins spoke about mentally Determining whether a person was so retarded offenders being less morally severely mentally ill at the time of the crime culpable because of their "diminished ability as to render him or her less culpable is not to understand and process information, to much of a leap from that former knowing- learn from experience, to engage in logical right-from-wrong jurisprudence. Likewise,

178 the argument falters when one considers that ISSUE #9: CONSTITUTIONALITY OF TWO intellectual disability in this state is not AGGRAVATING FACTORS determined through a mathematical calculation, but rather the condition requires I concur with the majority's determination a case-by-case determination as well. that the issues raised here were previously decided adversely to Kahler, and I see no Moreover, I must confess to being baffled by reason to attempt to avoid the doctrine of the point Kleypas attempted to make by stare decisis today. stating that "often such [mental] illnesses can be treated and may not manifest in criminal ISSUE #10: SUFFICIENCY OF THE EVIDENCE behavior." If the suggestion is that mental OF AGGRAVATING CIRCUMSTANCE retardation and being underage always manifests in criminal I would agree with the majority's assessment behavior, that would, of course, be ludicrous. that this case presents an exception to the The fact that not all mentally ill persons general proposition that shooting deaths are engage in criminal activity is no more not inherently heinous, atrocious, or cruel. A compelling than the fact that not all mentally person who stalks and systematically shoots retarded persons are criminals. Moreover, if his wife and daughters, one after the other, the statement means to suggest that mentally whereupon each remains aware of her own retarded persons can never receive training impending death and the deaths of her that will permit them to peacefully exist in relatives has committed capital murder in a society, that, too, would be wrong-headed. heinous, atrocious, and cruel manner.

Finally, Kleypas' rationale that the problem OTHER UNASSIGNED ERRORS of executing severely mentally ill persons is ameliorated because mental illness can be Kahler does not challenge the presented to the jury as a mitigator does not constitutionality of Kansas' death penalty law pass cursory consideration. Would telling a under our State Constitution. But as noted juror that the defendant suffers from a above, we can—and should—consider severe mental illness that resulted in him or unassigned errors that impact on fairness and her killing people without knowing it was justice. In Robinson, I expressed my view wrong, suggesting that the defendant will that the death penalty violates the prohibition always be a danger to society, make the juror against cruel or unusual punishment in our more, or less, likely to vote for death? If it is State Constitution. I relied heavily on Justice morally and legally wrong to execute a Breyer's dissent in Glossip, which I person who is no more culpable than Atkins' summarized as follows: "average murderer," the decision to do so "The Glossip dissent opined that in should not be left in the emotionally charged 1976, when the United States hands of the jury. Supreme Court upheld the death penalty, 'the Court thought that the

179 constitutional infirmities in the death of proof does not mean beyond all doubt. penalty could be healed,' and it Then, in the sentencing phase, the same less- 'delegated significant responsibility than-certain standard is applied to the to the States to develop procedures existence of aggravating factors, which must that would protect against those then be outweighed by mitigating constitutional problems.' But circumstances. '[a]lmost 40 years of studies, surveys, and experience strongly indicate . . . But there is nothing uncertain about the that this effort has failed.' The dissent punishment of death. There is no taking back related that the current administration a completed execution, even if we learn that of the death penalty 'involves three the jury was hoodwinked by unscrupulous fundamental constitutional defects: forensics, sandbagged by unethical (1) serious unreliability, (2) prosecutions, or left less than fully informed arbitrariness in application, and (3) by inconceivably incompetent defense unconscionably long delays that counsel. In recent years, death row inmates undermine the death penalty's have been found to have been wrongfully penological purpose.' Moreover, the convicted for a plethora of dissent noted that, perhaps as a result reasons. Moreover, after a death sentence is of these constitutional defects in the executed, it matters not one whit whether the death penalty, 'most places within the sentence was unconstitutionally imposed. For United States have abandoned its use,' instance, there was no relief for all of the which makes the penalty 'unusual.'” mentally retarded offenders put to death before the Atkins court announced that it was The only thing I would add here is the unconstitutionally cruel and unusual obvious observation that a part of what makes punishment to do so. Likewise, the 22 the death penalty unfair and unjust is that the juvenile offenders put to death between 1985 degree of certainty that a jury must possess to and 2003 were not brought back to life vote for the death penalty does not match the by Roper's epiphany that a state executing its finality of the punishment, once executed. A children is categorically unconstitutional. jury can convict a person of capital murder without being certain that the person is guilty. In short, when it comes to our death penalty, Indeed, prosecutors frequently argue to juries the scales of justice are not in equipoise. That that the beyond a reasonable doubt standard is cruel.

180 “Supreme Court to Examine Insanity Defense, Need for Jury Unanimity”

The Wall Street Journal

Jess Bravin

March 18, 2019

The Supreme Court said Monday it would The Kansas law, he argues, violates the consider whether two pillars of criminal Eighth Amendment prohibition of cruel and law—the insanity defense and the rule that unusual punishment and the 14th only unanimous juries may convict—are Amendment guarantee of due process of law. required by the Constitution. The insanity defense dates from an 1843 The court also agreed to decide cases British case of Daniel M’Naghten, a Scottish involving two other questions of criminal wood-turner who fatally shot a government law. One is how recent decisions limiting secretary he mistook for the prime minister. punishment of juvenile offenders apply Under the resulting M’Naghten rule followed retroactively, an issue raised by Beltway by British and American courts, defendants sniper Lee Boyd Malvo in challenging his can be acquitted if they don’t comprehend sentence of life imprisonment without the what they are doing or don’t understand that possibility of parole. It said it would also it is wrong. decide whether states can prosecute crimes based on false information entered on federal In the mid-20th century, courts expanded the immigration forms. grounds for insanity or mental-defect defenses. A tiny number of defendants plead All four cases will be heard in the court’s next insanity, but after several notorious cases, term, which begins Oct. 7. including John Hinckley’s acquittal for attempting to assassinate President Reagan The insanity case comes from Kansas, which and for severely wounding his spokesman in 1996 eliminated the right of a defendant to James Brady, lawmakers and voters began to claim he or she couldn’t distinguish between rein in mental-capacity defenses. right and wrong. James Kahler, sentenced to death for the 2009 murders of four family States like California, where voters were members, contends he was denied the chance shocked by the so-called Twinkie defense to argue he was criminally insane based on invoked to claim that the accused’s poor diet severe depression that may have made him, partly led him to kill San Francisco Mayor as a defense expert testified, “psychotic and George Moscone and Supervisor Harvey impaired to the point” of losing the required Milk, dialed back the scope of the insanity degree of moral consciousness. defense. But according to Mr. Kahler’s petition, Kansas, Alaska, Idaho, Montana and

181 Utah go further, prohibiting defendants from consideration of their incomplete arguing that they lack the capacity to development and capacity for rehabilitation distinguish right from wrong. before imposing life without parole.

In a separate case, the court will examine A federal appeals court in Richmond, Va., whether defendants can be convicted of found the 2012 decision applied retroactively crimes without a unanimous jury vote. to Mr. Malvo’s case. The Virginia attorney Oregon is the last state permitting 10-2 votes general appealed. for conviction, after Louisiana voters amended the state constitution to require The fourth case granted Monday involves a unanimous verdicts after Jan. 1, 2019. state prosecution for identity theft of three illegal immigrants who used other people’s Evangelisto Ramos, however, who was Social Security numbers to fill out convicted of a New Orleans murder in 2016 employment forms in Kansas. The state by a 10-2 vote and sentenced to life without supreme court ruled that federal law doesn’t the possibility of parole, argues that the permit states to base such charges on false unanimity requirement, long recognized as information entered on federal immigration applying to federal courts under the Sixth forms. Kansas, backed by the Trump Amendment, is constitutionally demanded of administration, argues that reading is state courts as well. mistaken.

The Supreme Court has found that nearly After accepting those cases, the Supreme every provision of the Bill of Rights also Court heard argument over 11 districts in the applies to state governments, but the Sixth Virginia House of Delegates that a lower Amendment has been an anomaly since 1972, court found had impermissibly been drawn to when the justices splintered 5-4 against discriminate against African-American applying it to the states. voters. The argument focused primarily not on the lower court’s reasoning, however, but The Malvo case revisits a series of random on whether the Republican-controlled House, shootings that terrorized the Washington, which intervened in the case, had legal D.C. area in 2002 and left 10 victims dead. standing to defend the map over opposition The crime spree’s mastermind, John from the state’s Democratic attorney general. Muhammad, was executed by Virginia in 2009. Mr. Malvo, who was aged 17 when he Virginia holds off-year state elections, and all committed most of the crimes, was sentenced 140 legislative seats are at issue. Republicans to life without parole. hold a 51-49 advantage in the state House.

Starting in 2005, however, the Supreme A decision in the case, Virginia House of Court delivered a series of opinions that Delegates v. Bethune-Hill, is expected before prohibited the death penalty for juvenile July. offenders and, in 2012, required additional

182 “Kansas quadruple killer’s SCOTUS appeal could change insanity defenses nationwide”

WIBW, Topeka, Kansas

Nick Viviani

March 19, 2019

A U.S. Supreme Court ruling on the case of a in 2003 following the Michael Bethel’s Kansas man convicted of killing four family appeal of his murder conviction. members ten years ago in Osage County could change the way insanity defenses work “Kansas still allows that information to be put across the country. on, but through a different statute regarding information about mental disease or defect,” On Monday, Kansas Attorney General Derek said Schmidt. Schmidt announced the nation’s highest court would hear the appeal of James Kraig In its decision to hear Kahler’s appeal, federal Kahler, who was sentenced to death for the Justices pointed out seven states’ high courts November 2009 killings of his estranged have recognized a Constitutional right to an wife, two daughters, and wife's grandmother insanity defense, defying their respective a day after Thanksgiving. state legislatures’ efforts to place restrictions on it or get rid of it altogether. They The U.S. Supreme Court granted the Writ of specifically pointed to the Nevada Supreme Certiorari filed on behalf of Kahler by the Court’s determination the “legal insanity is a state’s Capital Appellate Defender’s office, well-established and fundamental principle Sidley Austin LLP, and the Northwestern of the law of the United States… (and) Supreme Court Practicum. The case is …therefore protected by the Due Process scheduled to be heard in the October 2019 Clauses of both the United States and Nevada session. Constitutions.”

The Justices called Kahler’s case an “ideal The writ issued by the Court also pointed to vehicle” to determine whether the state’s precedent by the Washington Supreme Court restrictions on insanity pleas violate his citing the long history of insanity defenses Eighth and Fourteenth Amendment rights. “from the earliest period of the common According to Kansas statute, mental disease law.” In Washington v. Strasburg the court or defect is not a defense if the defendant had ruled it was “too plain for argument” that the intention of committing the offense “prior to and at the time of the adoption of our “regardless of why he thought he was doing Constitution” a defendant was entitled to it or whether he knew it was right or wrong.” such a defense. The state Supreme Court upheld the measure

183 “We have a very limited use of evidence U.S. Supreme Court to call Kahler’s appeal regarding a mental disease or defect that can “an ideal vehicle to decide the issue.” be used in criminal cases in Kansas,” said John Francis, a law professor at Washburn It added that the Kahler case “cleanly" offers University. the Justices a chance to settle the issue.

The High Court said its counterparts in the “(I)n forty-six other states, Mr. Kahler could Kansas Supreme Court were wrong when have been found not responsible as result of they decided an insanity defense was not a his mental state,” the Justices said. “Not in fundamental tenet of American Kansas.” jurisprudence, reaching back to scholarly In Idaho, one of the state’s that has restricted thought from Hebrew and Greek thinkers its insanity defense, a three-Justice majority from the 6th and 5th centuries B.C., ruled Due Process does not mandate an respectively. They noted by the 12th century insanity defense either at the state or federal such a defense “had taken root within the level. The Justices found the “wide disparity” English common law tradition, and by the in decisions by state legislatures and courts sixteenth century, insanity was a “well “suggests” it is not Constitutionally-required. recognized defense.” The U.S. Supreme Court noted other state According to the Court’s writ, the Bethel high courts have issued similar decisions. decision found the Kansas state legislature Additionally, both sides of the did not eliminate the insanity defense constitutionality split are filled with altogether, however it did “redefine” it. precedents affirming their positions. Kansas law as it stands allows defendants claiming insanity to be convicted “if the “We think that the Kansas law has a solid defendant was able to form the intent constitutional basis,” said Schmidt. required to commit the offense” – even if they did not know whether doing it was right or VITALLY IMPORTANT wrong. The statement called irrelevant the fact malice is not an essential part of a murder “Whether the Constitution permits states to decision in Kansas, only the intent to kill a criminally punish (and potentially execute) human being. individuals who could not control their actions or understand they were wrong has AN IDEAL VEHICLE profound legal, moral, and practical implications for our criminal justice system.” In contrast, four states besides Kansas – Alaska, Idaho, Montana, and Utah – have all placed restrictions on the M’Naghten (or - U.S. Supreme Court Review of Petition for similar) rule that typically is used in insanity Writ of Certiorari for Kahler v. Kansas defenses. This discrepancy has prompted the

184 In declaring the questions posed by the In February of last year, the Kansas Supreme Kahler case “a vitally important and Court upheld Kahler's conviction. The state recurring issue,” the U.S. Supreme Court Justices ruled that, while prosecutors did stated that the legitimacy of our criminal law make errors in the course of the trial, those rests in part on whether it “reflects the moral mistakes would not have affected the verdicts judgment of the community.” nor his sentence. In addition, they concluded his crimes met the standard of "heinous, They cite precedent from Tison v atrocious, or cruel" that justifies the death Arizona that argues the “heart of the penalty. retribution rationale” relates directly to personal culpability of the offender. They declare this “crucial link” is broken in cases involving the severely mentally ill who cannot control or comprehend the nature of their actions.

Beyond that, a guilty verdict, as opposed to an insanity verdict, could in turn prevent a defendant from receiving necessary medical treatment because “prisons are notoriously ill-suited to provide adequate mental health treatment.”

SENTENCED TO DEATH

Kahler was sentenced to death for the November 2009 killings of his estranged wife, two daughters, and wife's grandmother a day after Thanksgiving.

185 “Consensus of Confusion: Determining the Constitutionality of the Insanity Defense”

The Claremont Journal of Law and Public Policy

Rafael Santa Maria

February 11, 2019

A grisly capital murder case might determine illness as a defense to criminal action, Kahler the constitutionality of the insanity defense. was not allowed to provide evidence that his In 2009, James Kraig Kahler shot and mental illness caused him to lose control and killed his wife, his mother-in-law, and his thus was not given proper due process. own two daughters in Burlingame, Kansas. Furthermore, the defense claimed that After being found guilty and facing a capital punishing Kahler would be cruel and unusual murder conviction, Kahler appealed to the since his mental illness, as opposed to Kahler Kansas Supreme Court in an attempt to himself, bore the moral culpability of the overturn his death sentence. In doing so, the crime. defense claimed that Kahler’s severe depression, seemingly caused by his wife’s By framing the issue of the insanity defense extramarital affair and estrangement from his in these terms, Kahler v. Kansas may provide family, impaired Kahler’s judgment and a definitive answer to whether “the caused him to lose control of his actions. Constitution mandates an insanity defense,” Nevertheless, the Kansas Supreme Court a question that the Supreme Court avoided affirmed the trial court’s capital conviction. in Clark v. Arizona, a previous case involving Kahler then petitioned for a writ of certiorari, a similar issue. In said case, the Supreme bringing the future of the insanity defense to Court affirmed the Arizona Court of Appeals the national stage. decision to convict Eric Michael Clark, a man suffering from paranoid schizophrenia, since Although the insanity plea is very seldom Clark could reasonably distinguish between used in US criminal cases, the morally right or wrong actions. Still, the pending Kahler v. Kansas case nonetheless Supreme Court remained ambiguous presents interesting constitutional questions. regarding the constitutionality of the insanity In pleading for Kahler’s innocence, the defense and instead left the issue largely up Kahler defense argued that the Kansas courts to the state courts. Justice Souter’s violated his Fourteenth Amendment right to decision reflected this equivocality, stating: due process and his Eighth Amendment right “We have never held that the Constitution to freedom from cruel and unusual mandates an insanity defense, nor have we punishment. They argued that, since held that the Constitution does not so Kansas does not recognize severe mental require.”

186 Without a definitive stance on the insanity the insanity defense is a constitutionally defense from the Supreme Court, state high mandated aspect of the criminal legal system. courts differ significantly on whether or not Throughout the petition brief, the petitioners the insanity defense is constitutionally decry the Kansas Supreme Court’s decision required. In Kahler’s petition to the Supreme and Kansas policy on the insanity defense in Court, the petitioners highlight these wide general, presenting the need for a disagreements and use them to argue for constitutionally-mandated insanity defense a writ of certiorari. Notably, the as the culmination of hundreds of years of petition points out that while Nevada, English common law principles and California, Louisiana, Washington, precedents. Mississippi, Colorado and Minnesota condemn criminal convictions of defendants Regardless of the petitioners’ bias, the brief who are mentally unable to understand or draws attention to how the constant control their actions, Alaska, Idaho, Kansas, prevalence of mental illness ensures that Montana and Utah explicitly deny that due there will always be at least some cases in process requires states to recognize an which the culpability of the defendant cannot insanity defense. Moreover, the petitioners easily be determined. Since this issue will stress that these states overwhelmingly tend inevitably persist, the issue of consensus on to reaffirm their previous rulings, further the insanity defense will continue to boil to entrenching insanity defense the surface. Therefore, even if it is not inconsistencies. addressed and resolved in Kahler v. Kansas, the issue will likely turn up again in the Of course, the Kahler petition unabashedly future. advocates for the Supreme Court to rule that

187 “Kansas Supreme Court uphold James Kahler’s murder conviction, death sentence”

The Topeka Capital Journal

Morgan Chilson

February 9, 2018

An appeal by James Kraig Kahler to overturn had argued Kahler was severely mentally a capital murder conviction after he was impaired when he committed murder because found guilty of killing four family members of depression. in 2009 was quashed Friday by the Kansas Supreme Court, which also upheld a state “Kahler has offered no new reason to statute that allows the execution of people reconsider the arguments previously and with severe mental illnesses. thoughtfully rejected by this court,” the majority court opinion said. Kahler, who killed his wife, two daughters and his wife’s grandmother in a Burlingame Kahler murdered his estranged wife, Karen shooting, raised 10 issues in his appeal, Kahler, 44; daughters Lauren Kahler, 16, and challenging the conduct of the prosecutor and Emily Kahler, 18; and Karen Kahler’s trial judge and arguing the death penalty is grandmother, Dorothy Wight, 89. He left his unconstitutional when applied to a person then 10-year-old son alive. who has a severe mental illness when Kansas Attorney General Derek Schmidt committing a crime. applauded the court’s decision to uphold a While the Supreme Court acknowledged the death sentence for the fifth time. trial judge committed errors, the majority “The decision today affirms the conviction agreed those errors didn’t affect the trial’s and death sentence based on an Osage outcome and didn’t justify reversing the County jury’s findings and moves this case guilty verdict or death sentence. forward one more step,” Schmidt said. The court asserted arguments by Kahler’s Others with a death penalty upheld by the attorney regarding the constitutionality of a court are Scott Cheever, John Robinson, Kansas statute that abandoned the insanity Gary Kleypas and Sydney Gleason. defense didn’t make a case for reconsideration. Kahler’s defense attorney

188 Kelly v. United States

Ruling Below: United States v. William E. Baroni, Jr., 909 F.3d 550 (3d Cir. 2018).

Overview: Kelly was convicted of fraud from federally funded programs, wire fraud, conspiracy to commit fraud, and conspiracy against civil rights. She appealed her conviction. The issue is whether a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

Issue: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

UNITED STATES of America, Plaintiff-Appellee

v.

William E. BARONI, Jr. and Bridget Anne KELLY, Defendants-Appellants

United States Court of Appeals, Third Circuit

Decided on November 27, 2018

[Excerpt; some citations and footnotes omitted]

SCIRICA, Circuit Judge:

Defendants William E. Baroni, Jr. and coverage ensued, and the scandal became Bridget Anne Kelly engaged in a scheme to known as "Bridgegate." impose crippling gridlock on the Borough of Fort Lee, New Jersey, after Fort Lee's mayor In 2015, a grand jury indicted Baroni and refused to endorse the 2013 reelection bid of Kelly for their role in the scheme. Each then-Governor Chris Christie. To this end, Defendant was charged with seven counts: under the guise of conducting a "traffic conspiracy to obtain by fraud, knowingly study," Baroni and Kelly, among others, convert, or intentionally misapply property of conspired to limit Fort Lee motorists' access an organization receiving federal benefits, 18 to the George Washington Bridge—the U.S.C. § 371, and the substantive offense; world's busiest bridge—over four days in conspiracy to commit wire fraud, and two early September 2013: the first week of Fort counts of the substantive offense; and Lee's school year. This scheme caused conspiracy against civil rights, and the vehicles to back up into the Borough, substantive offense. A jury convicted creating intense traffic jams. Extensive media Defendants on all counts. They appeal only their judgments of conviction.

189 For reasons that follow, we will affirm local traffic and "immediately thought that Defendants' judgments of convictions on the this would be . . . a potential leverage point wire fraud and Section 666 counts but will with [Fort Lee] Mayor [Mark] Sokolich reverse and vacate their civil rights down the road." Wildstein shared this convictions. observation with Baroni, Governor Christie's then-Chief of Staff Bill Stepien, and Kelly, I. then the Deputy Chief of Staff for New Jersey's Office of Intergovernmental Affairs In 2010, then-New Jersey Governor Chris (IGA). Wildstein did not, however, use the Christie appointed Baroni to serve as Deputy Special Access Lanes as leverage at that time. Executive Director of the Port Authority of New York and New Jersey. That same year, Around the same time that Wildstein realized David Wildstein—a cooperating witness in the Special Access Lanes could be used as this case—was hired to serve as the Port leverage, IGA officials—including Kelly— Authority's Director of Interstate Capital were discussing a plan to solicit Projects, in which capacity he functioned as endorsements from Democratic elected Baroni's chief of staff. officials to generate bipartisan support for Governor Christie's 2013 re-election bid. Among its many functions, the Port IGA officials rewarded potential endorsers Authority operates the George Washington with, among other things, "Mayor's Days" Bridge, a double-decked suspension bridge (meetings with top departmental and connecting the Borough of Fort Lee, New agency staff) and invitations to sporting Jersey, and New York City across the events, breakfasts and parties at Hudson River. On the bridge's upper deck, Drumthwacket (the Governor's Princeton twelve toll lanes carry traffic from New residence), and the Governor's State of the Jersey into New York. During the morning State address. rush hour, Port Authority police place traffic cones to reserve the three right-most lanes— The Governor's Office and IGA used the Port the "Special Access Lanes"—for local traffic Authority similarly to bestow political favors from Fort Lee. This leaves the other nine on potential endorsers. As Wildstein lanes for drivers on the "Main Line," which explained at trial, the Port Authority "was includes traffic from I-80 and I-95. This viewed as the economic engine of the region" practice of reserving Special Access Lanes and "had an ability to do things for was a decades-long custom dating back to a Democratic officials that would potentially political deal between a former New Jersey put the Governor in a more favorable governor and Fort Lee mayor. position." Baroni and Wildstein were thus asked "to assist the Governor's Office in Wildstein testified he first became aware of identifying opportunities that would be the Special Access Lanes in March 2011. He helpful." The Port Authority gave benefits learned the three lanes were given to Fort Lee ranging from gifts (e.g., steel from the by a former New Jersey governor to reduce original World Trade Center towers, flags

190 that had flown over Ground Zero, framed Fort Lee." Wildstein testified that, on a prints) and tours, to jobs, to large economic follow up telephone call, Kelly told him that investments (e.g., the $250 million purchase "Mayor Sokolich needed to fully understand of the Military Ocean Terminal at Bayonne). that life would be more difficult for him in the second Christie term than it had been [i]n the One Democratic endorsement sought by the first." Wildstein admitted at trial that he Governor's Office was that of Mayor agreed to change the lane configuration "[f]or Sokolich. IGA invited Sokolich to a New the purpose of causing—of punishing Mark York Giants game, several holiday parties, Sokolich, of creating a traffic jam that would and one of Governor Christie's budget punish him, send him a message," and that addresses. And, as early as 2010, the there was no other reason for the change. Governor's Office and IGA directed Wildstein to leverage the Port Authority's Wildstein testified he told Baroni he resources to obtain Sokolich's endorsement. "received an email from Miss Kelly that [he] Sokolich received benefits ranging from the viewed as instructing [him] to begin to put sort of gifts described above to substantial leverage on Mayor Sokolich by doing a lane Port Authority assistance for Fort Lee (e.g., closure." He also testified he told Baroni "that Port Authority Police assistance directing Miss Kelly wanted the Fort Lee lanes closed traffic in Fort Lee, a $5,000 contribution to . . . [f]or the purpose of punishing Mayor the Fort Lee fire department for an equipment Sokolich . . . [b]ecause he had not endorsed purchase, and over $300,000 in funding for Governor Christie" and that "Mr. Baroni was four shuttle buses providing Fort Lee fine with that." residents with free transport between ferry and bus terminals). Despite that, Sokolich According to Wildstein, he decided "to create informed IGA in 2013 that local political the cover of a traffic study" and shared his considerations precluded him from endorsing plan with both Baroni and Kelly. Wildstein the Governor's reelection bid. believed "calling it a traffic study would provide a cover story for the true purpose of In June 2013, Kelly told Wildstein that she changing and realigning that traffic pattern at was disappointed Sokolich would not be the bridge" and "to have a public policy endorsing Governor Christie, and Wildstein reason for doing so as opposed to saying it reminded her "if she want[ed] the Port was political and it was punitive and Authority to close down those Fort Lee lanes revealing the true purpose." In furtherance of to put some pressure on Mayor Sokolich, that Defendants' traffic study cover story, that c[ould] be done." On August 13, 2013, Wildstein contacted Peter Zipf, the Port Kelly sent an email to Wildstein that read: Authority's chief traffic engineer, and told "Time for some traffic problems in Fort Lee." him he wanted to take away the cones that Wildstein "understood that to mean it was created the Special Access Lanes "so that time to change the lane configurations, the New Jersey could determine whether those upper level of the George Washington Bridge three lanes given to Fort Lee would continue in order to create traffic in the Borough of on a permanent basis." Zipf responded later

191 that day with various proposals but Baroni and Kelly, and none of the three saw recommended that at least one segregated a problem with this extra cost. Wildstein and lane be left in place to prevent sideswipe Zipf also discussed collecting data on the crashes. ensuing traffic, and Wildstein testified he understood it would require "some staff According to Wildstein, he and Baroni time." discussed when to implement the lane closure at the end of August 2013, and they selected On the morning of Monday, September 9, Monday, September 9, 2013—the first day of Port Authority police placed traffic cones school in Fort Lee. But Wildstein waited to two toll booths to the right of where they give the instruction until Friday, September were customarily placed on the upper deck, 6. He testified "[i]t was a deliberate effort on thereby reducing the number of Special [his] part to wait until the last minute to give Access Lanes from three to one, and a final instruction so that nobody at the Port increasing the number of Main Line lanes Authority would let Fort Lee know, would from nine to eleven. This realignment meant communicate that to Fort Lee or anyone else that Fort Lee's sole remaining Special Access within the Port Authority," including Lane had to accept both cash and E-ZPass, Executive Director Patrick Foye. According further delaying traffic. As discussed, Fort to Wildstein, he discussed waiting to give the Lee received no advance warning of the instruction with both Baroni and Kelly, who change—contrary to the Port Authority's agreed. This directly contravened normal standard procedures. Port Authority protocol, with any lane closures announced to the public weeks, and As a result of this change, cars attempting to even months, in advance. cross the George Washington Bridge during the morning commute backed up into Fort Wildstein gave the instruction to Zipf and Lee and gridlocked the entire town. Mayor two other Port Authority managers, Bob Sokolich repeatedly attempted to contact Durando (the general manager of the George Baroni and IGA to have the two other Special Washington Bridge) and Cedric Fulton (the Access Lanes reinstated, but Baroni director of Tunnels, Bridges & Terminals), deliberately did not respond. Wildstein again claiming that New Jersey wanted to see testified "that was the plan that [he] had come whether the Special Access Lanes would up with along with Mr. Baroni and Miss remain permanent. When Fulton asked if Kelly, which is that all calls would be Foye knew, Wildstein lied and said he did. directed to Mr. Baroni. And that Mr. Baroni Wildstein later told the same lie to Durando. would be radio silent. Meaning any—all the calls would come to him, and he wasn't Durando explained that because only one planning on returning any of them." Special Access Lane would remain open, the Port Authority needed to pay an extra toll On the morning of September 9, Mayor collector to be on relief duty for that sole toll Sokolich called Baroni's office about an collector. Wildstein discussed this with "urgent matter of public safety in Fort Lee,"

192 but received no response. The Fort Lee In response to significant public backlash, borough administrator also called to say Fort Baroni and Wildstein began preparing a Lee police and paramedics had difficulty report that would describe what happened as responding to a missing child and a cardiac "a traffic study to determine whether it was arrest. The next day, the mayor called again, fairer to give three lanes to Fort Lee." The saying the traffic was a "life/safety" issue and report would also have admitted that the Port that paramedics had to leave their vehicle and Authority had failed to give Fort Lee respond to a call on foot. Receiving no appropriate notice due to an alleged response to his calls, he then sent Baroni a "communications breakdown." But the report letter on September 12 detailing the negative was never released because Port Authority impact on public safety in Fort Lee. Kelly staff were asked to testify before the New was similarly unmoved by the traffic and the Jersey State Assembly. Wildstein helped anger it generated, reportedly smiling when a Baroni prepare his testimony, which was colleague at IGA informed her of the based on the draft report and the traffic study situation. and "fairness" rationale.

Executive Director Foye first learned of the Then-Governor Christie fired Wildstein on realignment on the evening of Thursday, December 6 and Baroni on December 12. September 12. The following morning, he Kelly was fired on January 9, 2014. A federal sent an email to Baroni and others, criticizing criminal investigation followed and resulted the "hasty and ill-advised" realignment and in the underlying prosecution. ordering the restoration of the prior alignment with three Special Access Lanes. II. Baroni went to Foye's office and asked that the realignment be put back into effect, with On April 23, 2015, a federal grand jury only one Special Access Lane for Fort Lee. returned a nine-count indictment, charging Foye testified Baroni said the issue was Defendants with seven counts each. "important to Trenton," which Foye In Count 1, the grand jury charged understood to reference the Governor's Defendants with conspiracy to obtain by Office. Foye refused to do so. Baroni fraud, knowingly convert, or intentionally returned to Foye's office later that day, again misapply property of an organization asked that two of Special Access Lanes be receiving federal benefits. As charged, "[t]he taken away from Fort Lee, and said the issue object of the conspiracy was to misuse Port was "important to Trenton" and "Trenton Authority property to facilitate and conceal may call." Foye held firm and continued to the causing of traffic problems in Fort Lee as refuse. Wildstein testified Baroni reached out punishment of Mayor Sokolich." In Count 2, to David Samson, the New Jersey-appointed Defendants were charged with the Chairman of the Port Authority, to "overrule substantive offense of that conspiracy. The Mr. Foye and talk to others on the New York grand jury alleged Defendants, through Port side," but Samson ultimately declined to do Authority agents Baroni and Wildstein, so, instead recommending Baroni "let it go."

193 "obtained by fraud, otherwise without At the outset, Defendants moved to dismiss authority knowingly converted to their use all the charges. The District Judge held oral and the use of others, and intentionally argument and denied the motions. After a six- misapplied property owned by and under the week trial, the jury found Defendants guilty care, custody, and control of the Port on all counts. Defendants moved for Authority, with a value of at least $5,000." judgments of acquittal, and for a new trial. Again, the trial judge denied the motions. She In Count 3, Defendants were charged with then sentenced Baroni to 24 months' conspiracy to commit wire fraud. The imprisonment and Kelly to 18 months' charged "object of the conspiracy was to imprisonment. Defendants, who are free on obtain money and property from the Port bail pending this appeal, challenge only their Authority and to deprive the Port Authority judgments of conviction. of its right to control its own assets by falsely representing and causing false representations to be made that the lane and III. toll booth reductions were for the purpose of a traffic study." In Counts 4 through 7, the Defendants challenge the sufficiency of the grand jury charged each Defendant with two evidence supporting their wire fraud substantive wire fraud violations. Count 4 and Section 666 convictions. pertained to Kelly's August 13, 2013 email "We exercise plenary review over a district informing Wildstein it was "[t]ime for some court's grant or denial of a motion for traffic problems in Fort Lee," and Count 6 to judgment of acquittal based on the her September 9, 2013 email thanking sufficiency of the evidence," and we apply Wildstein for confirming there would be the same standard as the district court. "A "[r]adio silence" from Baroni in response to judgment of acquittal is appropriate Mayor Sokolich's inquiries. Counts 5 and 7 under Federal Rule of Criminal Procedure related to Baroni's September 9 and 12, 2013 29 if, after reviewing the record in a light emails to Wildstein concerning complaints most favorable to the prosecution, we from Mayor Sokolich. determine that no rational jury could have In Count 8, the grand jury charged found proof of guilt beyond a reasonable Defendants with conspiracy against civil doubt." Where sufficiency arguments give rights. The charged "object of the conspiracy rise to questions of statutory interpretation, was to interfere with the localized travel our review is also plenary. rights of the residents of Fort Lee for the illegitimate purpose of causing significant A. traffic problems in Fort Lee to punish Mayor Defendants challenge the sufficiency of the Sokolich." In Count 9, Defendants were evidence underlying their wire fraud charged with the substantive violation. convictions. "A person violates the federal wire fraud statute by using interstate wires to

194 execute 'any scheme or artifice to defraud, or . . . [were] wasting their time in furtherance for obtaining money or property by means of of this conspiracy," and "money paid to the false or fraudulent pretenses, representations, engineers who wasted time—and Port or promises.'" Conspiracy to commit wire Authority professional staff, who wasted fraud is a separate crime subject to the same time collecting data that no one ever wanted." penalties as the substantive offense. The Government also invoked the costs the Port Authority incurred in redoing a The Government's theory at trial was that legitimate traffic study—at Center and Defendants sent emails in furtherance of, and Lemoine Avenues in Fort Lee—that was to execute, a scheme to defraud the Port spoiled by the gridlock and "would not have Authority of physical property (i.e., the been ruined without these lane reductions." Special Access Lanes and toll booths) and money (i.e., public employee labor) in order According to the Government, Defendants' to carry out the lane reductions. In untruthful claim they were conducting a summation, the Government explained this traffic study was what allowed them to carry was the "same money, the salaries, the same out the lane reductions and to obtain the Port property, the lanes, the toll booths," that it Authority property and money necessary to alleged Defendants fraudulently obtained, do so. The Government also contended knowingly converted, or intentionally Defendants conspired with each other and misapplied in violation of 18 U.S.C. § 666. Wildstein in furtherance of this fraudulent The Government explained: scheme.

The physical property that was Defendants argue the evidence was misused were the local access lanes, insufficient to prove a scheme to themselves, and the toll booths. . . . defraud because (1) Baroni possessed The defendants agreed to use these unilateral authority over Port Authority Port Authority assets, that property, to traffic patterns and any resources necessary purposely create a traffic jam in Fort to implement his decisions, and (2) the Port Lee. That agreement was not a Authority was not deprived of any property legitimate use of the George right. In addition to these challenges, Washington Bridge, the Port Defendants contend the Government has Authority's property. disguised an impermissible honest services fraud case as a wire fraud case in an attempt The Government identified the "money" as to circumvent the Supreme Court's decision "the salaries of each of the employees who in Skilling v. United States. wasted their time in furtherance of the defendants' scheme," including "the salary For reasons that follow, we hold the paid to the overtime toll booth collectors for Government presented evidence sufficient to the one remaining toll booth that was prove Defendants violated the wire fraud accessible to Fort Lee," "the money paid to statute by depriving the Port Authority of, at Baroni and Wildstein themselves while they

195 a minimum, its money in the form of public authority to invest the fund's monies with employee labor. others." Likening Baroni to the pension fund trustees in Zauber, Defendants argue "the 1. undisputed evidence showed that Baroni's position as co-head of the Port Authority Defendants principally argue they could not gave him authority to make unilateral have committed fraud because Baroni decisions about the alignment of traffic possessed the unilateral authority to control patterns at Port Authority facilities, and to traffic patterns at Port Authority facilities and command the resources needed to carry those to marshal the resources necessary to decisions out." We disagree. implement his decisions. As a preliminary matter, Zauber is inapposite They previously raised this argument in because here the grand jury alleged, and the moving both to dismiss the indictment and Government proved at trial, that the Port for judgments of acquittal or a new trial. Authority was actually deprived of its money Before trial, the District Judge declined to and property. In any event, the evidence dismiss the wire fraud counts on this basis, refutes the notion Baroni possessed holding the existence and scope of Baroni's "unilateral" authority to realign the bridge's authority was a question of fact for the jury. lanes. To the contrary, it reveals Defendants After trial, the judge denied Defendants' would not have been able to realign the lanes motions because that question was "one that had Baroni and Wildstein provided the actual the jurors resolved in favor of the reason or no reason at all. They had to create prosecution." Carefully reviewing the the traffic study cover story in order to get relevant witness testimony, the judge held Port Authority employees to implement the "the Government presented evidence at trial realignment. And, as we described above, from which the jury could reasonably have Wildstein lied to Port Authority officials found that Baroni did not have the authority Durando and Fulton about whether Executive to change the lane configurations, and in fact, Director Foye knew of the realignment. This did defraud the Port Authority." We agree. lie was necessary to keep Foye in the dark Defendants rely on our opinion in United and prevent him from putting an immediate States v. Zauber. There, the defendants were end to the scheme. In fact, that is exactly what pension fund trustees who received happened when he finally learned of the kickbacks for investing in a mortgage realignment. Foye ordered the three Special company. We held the indictment failed to Access Lanes be restored to the use of Fort charge violations of the mail and wire fraud Lee motorists and refused Baroni's repeated statutes because it did not allege "an actual entreaties to reinstate the realignment. Baroni money or property loss to the pension then appealed to Chairman Samson, who fund." In so holding, we observed, among declined to intervene and overrule Foye's other things, that the defendants, "as trustees decision. This evidence belies Defendants' of the pension fund, had the power and the assertion Baroni had anything approaching "authority to make unilateral decisions about

196 the alignment of traffic patterns at Port This instruction forecloses the possibility the Authority facilities." If that were so, Baroni jury convicted Defendants of fraud without could have reinstated the realignment on his finding Baroni lacked authority to realign the own without needing to appeal to Foye and lanes. For Baroni could not deprive the Port then Samson. That Baroni was Authority of money and property he was countermanded shows he lacked the authorized to use for any purpose. Nor could unencumbered authority he claims he he deprive the Port Authority of its right to possessed, and that he needed to lie to realign control its money or property if that right to the traffic patterns. The record contains control were committed to his unilateral overwhelming evidence from which a discretion. In finding the existence of a rational juror could have reached these scheme to defraud, the jury necessarily conclusions. Indeed, it is difficult to see how concluded Baroni lacked authority to order any rational juror could have concluded the realignment. otherwise. The jury's verdict necessarily reflects its rejection of Defendants' argument 2. that Baroni possessed unilateral authority to Defendants also argue the Port Authority was control the bridge. not deprived of any tangible property and Defendants contend we cannot draw this challenge the Government's and District inference because the trial judge declined to Court's invocation of the "right to control" give a jury instruction based on Zauber. We theory of property. disagree. The judge instructed the jury that Before trial, the trial judge rejected [i]n order to establish a scheme to Defendants' related argument the charges defraud, the Government must also should be dismissed because they did not prove that the alleged scheme "obtain" money or property. Relying on our contemplated depriving the Port decision in United States v. Al Hedaithy, the Authority of money and property. judge ruled "it [wa]s enough that they An [**22] organization is deprived prevented the Port Authority from exercising of money or property when the 'its right to exclusive use of' its property, organization is deprived of the right which here allegedly includes toll booths and to control that money or property. roadways, in addition to money in the form And one way the organization is of employee compensation and the costs of deprived of the right to control that redoing a traffic study." money and property is when the In their post-trial motions, however, organization receives false or Defendants raised no sufficiency arguments fraudulent statements that affect its respecting the property at issue. Rather, they ability to make discretionary contended only that Baroni possessed the economic decisions about what to do authority to realign the lanes. We note with that money or property. Defendants arguably forfeited their right to

197 raise these issues on appeal by not presenting the New Jersey side of the Port Authority them to the District Court. But we need not wanted to be able to "make a determination decide that question because Defendants' down the road as to whether those [Fort Lee] arguments are unpersuasive under any lanes would stay on a permanent basis." Of standard of review. course, as Wildstein admitted at trial, the traffic study rationale offered to Durando was The wire fraud statute proscribes "scheme[s] not the real reason for the realignment. or artifice[s] to defraud, or for obtaining money or property by means of false or Among other things, Durando told Wildstein fraudulent pretenses." As Defendants note, he would need to have a relief toll worker on the federal fraud statutes require the duty because all of Fort Lee's traffic would be defendants to scheme to defraud a victim of going through one lane. Wildstein testified he "property rights." "understood that the Port Authority would have to pay for an extra toll collector to be on Defendants argue they "did not deprive the relief duty for that first toll collector," and Port Authority of any tangible property." discussed this cost with both Defendants. "After all," they say, "the Port Authority still According to Wildstein, both Baroni and owns all of the lanes and tollbooths (and Kelly found it humorous that the Port always has)." But even Authority would have to "pay a second toll assuming arguendo Defendants are correct, collector to sit and wait in case the first toll the federal fraud statutes are not limited to collector had to go to the bathroom," and they protecting tangible property rights. "[T]o had no problem with the extra cost. On determine whether a particular interest is Sunday, September 8, 2013, Wildstein property for purposes of the fraud statutes, emailed Durando to say he would "be at [the] we look to whether the law traditionally has bridge early Monday [morning] to view [the] recognized and enforced it as a property new lane test." S.A. 49. Durando replied that right." he would also be present, and that he had "also brought a toll collector in on overtime The Government introduced ample evidence to keep toll lane 24 (the extreme right hand Defendants obtained by false or fraudulent toll lane Upper level) in the event the pretenses, at a minimum, public employees' collector assigned to TL 24 needs a labor. Their time and wages, in which the personal." Wildstein forwarded the email to Port Authority maintains a financial interest, Baroni. On cross-examination, Baroni is a form of intangible property. admitted he had received the email and did Wildstein testified that, on the Friday before not object to bringing in overtime toll booth the lane reductions, he called Durando, the workers. general manager of the George Washington The Government also called Theresa Riva, a Bridge, and said he wanted to study traffic Port Authority employee who served as an patterns and see the effect of taking two lanes Operations Planning Analyst for the George away from Fort Lee. Wildstein told Durando Washington Bridge during the relevant time

198 period. In that capacity, Riva supervised time the impact of reducing Fort Lee's Special keeping for operations staff and managed Access Lanes from three to one. Chung scheduling and coverage for toll collectors. testified he spent a little over eight hours Riva testified she learned of the lane doing this analysis on the Friday before the reductions the Friday before, and Bob reductions went into effect. During the week Durando "asked [her] to staff one additional of the reductions, Chung was asked to toll collector" on the upper level toll plaza compare travel times approaching the twenty-four hours a day. Because toll bridge's upper-level toll plaza during peak collectors work eight-hour shifts, this meant hours and to compare it to historical travel "three toll collectors a day to be an excess toll times. Chung testified he spent about six collector in the toll house." Riva testified all hours on this analysis, for a total of 14 hours these additional toll collectors were paid an spent on unnecessary work. overtime rate "[b]ecause they either worked on their regular day off or in excess of eight And Umang Patel, Staff Service Engineer in hours, a double [shift]." Riva testified these the Port Authority's Traffic Engineering employees would not have been paid absent department, downloaded and analyzed data the lane realignment. relating to travel time on the Main Line during the lane reductions. Patel testified he In addition to the overtime toll workers, spent two hours discussing the lane Wildstein discussed with Zipf using Port reductions on Monday, September 9, and Authority professional staff to track data, four hours per day analyzing data on which would include "numbers on how— Tuesday, September 10, through Thursday, how many cars were involved and how far September 12, for a total of fourteen hours. back the traffic was delayed." Wildstein understood Zipf "would have to use some Moreover, Wildstein estimated he spent staff time." At trial, the staff members twenty-five to thirty hours working on the testified to the significant amount of time lane reductions, and that Baroni spent fifteen they spent performing unnecessary work to twenty hours, for a total of forty to fifty related to the realignment. hours. Their compensation is plainly "money" for the purposes of the wire fraud Amy Hwang, Senior Operations Planning statute. Analyst for the Port Authority, testified she collected data on traffic at the bridge and The Government's evidence that Defendants compared it to traffic on the same date the fraudulently conscripted fourteen Port year before. Hwang testified she spent two Authority employees into their service, and hours working on the traffic study per day that Baroni and Wildstein accepted from Monday, September 9, through Friday, compensation for time spent conspiring to September 13, for a total of 10 hours. defraud the Port Authority, is alone sufficient for a rational juror to have concluded Victor Chung, Senior Transportation Planner Defendants deprived the Port Authority of its for the Port Authority, was asked to forecast money or property.

199 Although we need not reach or decide In denying Defendants' post-trial motions, Defendant's arguments on the "right to the District Court summarily rejected this control" theory in light of our holding, we argument, holding "[t]here is a difference . . . recognize this traditional concept of property between intangible rights to honest services provides an alternative basis upon which to not covered by the wire fraud statute, and conclude Defendants defrauded the Port intangible property rights which are." We Authority. As Baroni notes, "[i]ncluded agree. within the meaning of money or property is the victim's 'right to control' that money or Defendants primarily rely on the Supreme property." Court's decision in Skilling v. United States, which narrowed the scope of the honest The George Washington Bridge is the world's services statute, 18 U.S.C. § 1346. After the busiest motor vehicle bridge leading to our Supreme Court ruled in McNally that the nation's most populous city. The Port mail fraud statute was "limited in scope to the Authority's physical property—the bridge's protection of property rights," Congress lanes and toll booths—are revenue- enacted Section 1346 "specifically to cover generating assets. The Port Authority has an one of the 'intangible rights' that lower courts unquestionable property interest in the had protected . . . prior to McNally: 'the bridge's exclusive operation, including the intangible right of honest services.'" That allocation of traffic through its lanes and of statute provides, for the purposes of the mail the public employee resources necessary to and wire fraud statutes, that "the term keep vehicles moving. Defendants invented a 'scheme or artifice to defraud' includes a sham traffic study to usurp that exclusive scheme or artifice to deprive another of the interest, reallocating the flow of traffic and intangible right of honest commandeering public employee time in a services." In Skilling, the Supreme Court manner that made no economic or practical acknowledged "Congress intended § 1346 to sense. Indeed, the realignment—intended to refer to and incorporate the honest-services limit access to the bridge and gridlock an doctrine recognized in Courts of Appeals' entire town—was impractical by design. decisions before McNally derailed the intangible-rights theory of fraud." But it also In sum, Defendants' arguments concerning recognized a broad reading of the statute the property interest at issue fall far short. "would raise the due process concerns underlying the vagueness doctrine." In order 3. to preserve the statute, the Court surveyed pre-McNally honest services case law, and Finally, Defendants argue we "should reject concluded "there is no doubt that Congress the government's attempt to shoehorn a intended § 1346 to reach at least bribes and repudiated theory of honest services fraud kickbacks.” Accordingly, the Court limited into an ill-fitting theory of money or property the application of Section 1346 to "the bribe- fraud." and-kickback core of the pre-McNally case law."

200 Defendants argue it cannot be a crime "for a procedures. Indeed, witnesses testified that public official to take official action based on traffic studies are usually conducted by concealed 'political interests.'" And they computer modeling, without the need to warn that "[t]he government's theory—that realign traffic patterns or disrupt actual acting with a concealed political interest traffic. When traffic disruptions are nonetheless becomes mail or wire fraud so anticipated, the Port Authority gives advance long as the public official uses any public notice. And, as we have discussed, the government resources to make or effectuate evidence conclusively demonstrates Baroni the decision—would render the Supreme lacked the authority to realign the bridge's Court's carefully considered limitation [on traffic patterns unilaterally. honest services fraud] a nullity." According to Defendants, "[i]t cannot be the case that the It is hard to see, under Defendants' theory, Supreme Court has pointedly and repeatedly how a public official could ever be charged rebuffed the government's attempts to with simple mail or wire fraud. They appear prosecute public officials for the deprivation to suggest that, as public officials, any fraud of the public's intangible right to honest case against them necessarily entails services or honest government if, all along, intangible right to honest services. That is not the inevitable use of at least a peppercorn of so. As we have explained, Defendants were public money or property made every charged with defrauding the Port Authority instance of such conduct prosecutable as of its money and property—not the intangible money or property fraud." right to their honest services. Prosecutions of public officials for defrauding the We are mindful of the Supreme Court's government of money and property are honest services case law but do not believe it unfortunately quite common. counsels a different result in this case. Defendants were charged with simple money Defendants also argue their convictions pose and property fraud under Section 1343—not federalism concerns and would "involve[] the honest services fraud—and the grand jury Federal Government in setting standards of alleged an actual money and property loss to good government for local and state the Port Authority. In any event, their officials." Again, we disagree. This case conduct in this case can hardly be lacks the federalism concerns present characterized as "official action" that was in McNally, where the federal government merely influenced by political prosecuted a Kentucky state official and a considerations. Defendants invented a cover private citizen for their role in a "self-dealing story about a traffic study for the sole patronage scheme" involving the state's purpose of reducing Fort Lee's access to the purchase of insurance policies. But unlike a George Washington Bridge and creating typical state or local governmental body, the gridlock in the Borough. Trial testimony Port Authority is an interstate agency created established that everything about the way this by Congressional consent, and Defendants "study" was executed contravened acknowledge it receives substantial federal established Port Authority protocol and funding. The federal government thus has an

201 especially significant interest in protecting such organization, the Port Authority's financial and operational government, or integrity. agency; . . .

* * * shall be fined under this title, imprisoned not more than 10 years, or both. In sum, the Government presented sufficient evidence for the jury to convict Defendants (b) The circumstance referred to of wire fraud. in subsection (a) of this section is that the organization, government, or B. agency receives, in any one year period, benefits in excess of $10,000 Defendants' other sufficiency challenge under a Federal program involving a contests thei Section 666 convictions. In grant, contract, subsidy, loan, relevant part, Section 666 provides: guarantee, insurance, or other form of (a) Whoever, if the circumstance Federal assistance. described in subsection (b) of this section Accordingly, a violation of Section exists— 666(a)(1)(A) requires proof of five elements. (1) being an agent of an The government must prove that: (1) a organization, or of a State, defendant was an agent of an organization, local, or Indian tribal government, or agency; (2) in a one-year government, or any agency period that organization, government, or thereof— agency received federal benefits in excess of $10,000; (3) a defendant stole, embezzled, (A) embezzles, steals, obtained by fraud, knowingly converted, or obtains by fraud, or intentionally misapplied property; (4) that otherwise without property was owned by, or in the care, authority knowingly custody, or control of, the organization, converts to the use of government, or entity; and (5) the value of any person other than that property was at least $5,000. the rightful owner or intentionally Defendants' appeal involves only the third misapplies, property and fifth elements—whether they obtained that— by fraud, knowingly converted, or intentionally misapplied Port Authority (i) is valued at $5,000 property (the actus reus), and whether that or more, and property was worth at least $5,000.

(ii) is owned by, or is As with the wire fraud counts, the under the care, Government's theory at trial was that the custody, or control of property at issue fell into two categories:

202 physical property (i.e., the Special Access Port Authority protocol—for the sole purpose Lanes and toll booths) and money (i.e., of creating gridlock in Fort Lee. To execute employee labor). their scheme, they conscripted fourteen Port Authority employees to do sham work in Defendants argue the evidence was pursuit of no legitimate Port Authority aim. insufficient to prove a violation of Section That Defendants were politically motivated 666 because (1) that provision criminalizes does not remove their intentional conduct theft, not the allocation of a public resource from the ambit of the federal criminal law. based on political considerations, and (2) the What Defendants did here is hardly value of the property at issue was under analogous to a situation where a mayor $5,000. allows political considerations to influence her discretionary allocation of limited For reasons that follow, we hold the government resources in the normal course of Government presented evidence sufficient to municipal operations. There is no facially prove Defendants violated Section 666 by legitimate justification for Defendants' fraudulently obtaining, at a minimum, the conduct here. labor of Port Authority employees in furtherance of their scheme, and that the Nor are we persuaded by Defendants' value of that labor exceeded the statute's arguments that the Government has sought to $5,000 threshold. expand the reach of Section 666 beyond conduct involving bribery and theft. Relying 1. upon our decision in United States v. Cicco, Defendants broadly argue they merely Defendants contend the Government is allocated a public resource based on political attempting to use Section 666 "to criminalize considerations, which cannot be criminal. a public official's efforts to allocate or Offering an analogy, Kelly contends reallocate public resources based on politics." Defendants' conduct is "materially In that case, Cicco, a mayor, declined to indistinguishable" from that of a mayor who, rehire two auxiliary police officers because after a heavy snowfall, directs city employees they failed to support the Democratic Party in to plow the streets of a ward that supported a local election. The Government filed a her before getting to a ward that supported multi-count indictment charging Cicco and a her opponent. Baroni makes similar member of the town council with, among arguments. other things, violations of Section 666's anti- bribery provision, 18 U.S.C. § 666(a)(1)(B). While such analogies have some superficial After the jury found the defendants guilty, the appeal, we find them unpersuasive. We agree trial court entered a judgment of acquittal on with the District Court that this argument the Section 666 counts, reasoning Congress "conflates motive . . . with mens reas and did not intend for the statute to apply to their conduct." Defendants altered the bridge's conduct and that it was unconstitutionally decades-old lane alignment—without vague. authorization and in direct contravention of

203 On appeal, we recognized Section 666, read organizations or State and local governments literally, might cover the defendants' use of pursuant to a Federal program.'” We municipal employment to solicit election day observed "[t]he Senate Report expressly services as a form of quid pro quo, but that notes that Congress wished the new statutory the statute's language was "also consistent provision to be interpreted 'consistent with with an intention of focusing solely on the purpose of this section to protect the offenses involving theft or bribery, the crimes integrity of the vast sums of money identified in the title of that section." Because distributed through Federal programs from we found the statute ambiguous, we turned to theft, fraud, and undue influence by the legislative history. Concluding "the bribery.'" And "[w]e quote[d] extensively crimes Congress targeted when it created § from the legislative history to illustrate that 666 are simply different in kind than those Congress intended § 666 to redress particular alleged" against the defendants, we held they deficiencies in identified existing statutes." did not violate the statute. We also observed that the conduct in question—deprivation of We have subsequently reaffirmed our public employment to solicit political understanding that Congress contributions—was within the ambit of a intended Section 666 to focus on offenses different criminal statute, 18 U.S.C. § 601. involving fraud and theft, observing "that Congress intended to expand the federal The Government responds that Cicco is government's prosecutorial power to inapposite because the conduct at issue in that encompass significant misapplication of case "potentially implicated the bribery federal funds at a local level." We have also provisions of § 666(a)(1)(B), but has nothing "not[ed] that courts have been wary to do with property obtained by fraud, of interpreting § 666 too narrowly" and that converted or otherwise intentionally "the Supreme Court has repeatedly avoided misapplied." We agree that this case is not constructions of § 666 that would impose like Cicco. limits beyond those set out in the plain meaning of the statute." Although all of the But Cicco is instructive here. Our exposition relevant Supreme Court cases involve of Section 666's legislative history—which challenges to Section 666's bribery was not limited to Section 666's bribery provisions, their discussion of the statute's provisions—confirms that Defendants' text and legislative history validate our long- conduct in this case falls squarely within the established understanding of the statute's statute's purpose. As we explained in Cicco, purpose and scope. Congress enacted Section 666 as part of the Comprehensive Crime Bill of 1984. We In Salinas v. United States, for example, the noted "[t]he provision was 'designed to create petitioner contended the Government must new offenses to augment the ability of the prove a connection between a bribe and United States to vindicate significant acts of federal funds to obtain a conviction theft, fraud, and bribery involving Federal under Section 666(a)(1)(B). The Supreme monies which are disbursed to private Court disagreed, holding that Section 666's

204 bribery prohibition "is not confined to a proof of any connection between a bribe or business or transaction which affects federal kickback and some federal money." The funds." Relying upon the statute's Court disagreed, holding that the Necessary "expansive, unqualified language, both as to and Proper Clause gives Congress the power the bribes forbidden and the entities "to see to it that taxpayer dollars appropriated covered," and "the broad definition of the under [its Spending Clause] power are in fact 'circumstances' to which the statute applies," spent for the general welfare, and not frittered the Court found "no textual basis for limiting away in graft or on projects undermined the reach of the bribery prohibition." The when funds are siphoned off or corrupt public Court held the statute was unambiguous on officers are derelict about demanding value this point because it would "be 'plain to for dollars." The Court thus held "[i]t is anyone reading the Act' that the statute certainly enough that the statutes condition encompasses the conduct at issue." the offense on a threshold amount of federal dollars defining the federal interest, such as The Court next addressed Section that provided here." To confirm its 666 in Fischer v. United States. At issue was understanding of the statute, the Court relied whether Medicare payments paid to a upon the same legislative history we hospital constituted federal "benefits" for the discussed extensively in Cicco: purposes of Section 666(b). The petitioner argued the qualifying patient was the sole For those of us who accept help from beneficiary of payments made under the legislative history, it is worth noting Medicare program and that hospitals were that the legislative record confirms merely being compensated for services that § 666(a)(2) is an instance of rendered. The Court disagreed, holding that a necessary and proper legislation. The federal assistance program can have multiple design was generally to 'protect the beneficiaries, and that participating health integrity of the vast sums of money care organizations were also beneficiaries distributed through Federal programs under the Medicare program. The Court from theft, fraud, and undue influence reasoned, in part, that "[c]oupled with the by bribery,' see S.Rep. No. 98-225, p. broad substantive prohibitions of subsection 370 (1983), in contrast to prior federal (a), the language of subsection (b) reveals law affording only two limited Congress' expansive, unambiguous intent to opportunities to prosecute such ensure the integrity of organizations threats to the federal interest: 18 participating in federal assistance programs." U.S.C. § 641, the federal theft statute, and § 201, the federal bribery law. Finally, in Sabri v. United States, the Those laws had proven inadequate to Supreme Court addressed another challenge the task. The [federal theft statute] to Section 666's bribery provision. The went only to outright theft of petitioner argued, inter alia, that Section unadulterated federal funds . . . . 666(a)(2) could "never be applied "Congress was within its prerogative constitutionally because it fails to require to protect spending objects from the

205 menace of local administrators on the 666 "unless the public employee is on the take." take."

Recognizing that the statute was intended to Thompson is distinguishable. Thompson address offenses involving fraud and theft, applied the state's procurement regulations in the Court held that a way that actually saved the federal government money and caused no loss. Defendants' reliance on United States v. Defendants, on the other hand, lied in order Thompson, is also misplaced. In that case, to obtain public employee labor from Thompson, a Wisconsin state procurement fourteen Port Authority employees. They official, was prosecuted for steering a forced the Port Authority to pay unnecessary contract to a local travel agency, allegedly in overtime to toll workers and diverted well- violation of state procurement statutes and paid professional staff away from legitimate regulations. The government's theory had Port Authority business. Their fraud is been that Thompson "'intentionally soundly within the scope of conduct misapplie[d]' more than $5,000 by diverting Congress sought to proscribe in Section 666. it" away from the firm that should have been selected under the state's procurement We hold that, at a minimum, the Government regulations. The Seventh Circuit was not offered a valid theory that Defendants convinced that Thompson's decision actually fraudulently obtained, knowingly converted, violated the state's regulations. And it or intentionally misapplied the labor of Port observed that, unlike "[a]pproving a payment Authority employees, and that it offered for goods or services not supplied," her evidence sufficient to sustain Defendants' conduct "d[id] not sound like 'misapplication' convictions. of funds." Significantly, the firm she selected was actually the low bidder, and "[t]he It is well established that public employees' federal government saved money because of labor is property for the purposes of Section Thompson's decisions." The Seventh Circuit 666. turned to the statute's caption—"Theft or We have explained, in addressing bribery concerning programs receiving Defendants' sufficiency challenge to the wire Federal funds"—because "the word fraud counts, how they defrauded the Port 'misapplies' is not a defined term." Relying Authority of the labor of fourteen public on that caption and the Rule of Lenity, the employees—eleven toll collectors paid Seventh Circuit adopted a more narrow overtime and three professional staff reading of intentional misapplication "that members—in furtherance of the scheme. limits § 666 to theft, extortion, bribery, and Those public employees spent hours doing similarly corrupt acts." The Court further work that was unnecessary and furthered no commented it did not believe a state official's legitimate Port Authority aim. Defendants violation of state regulations and statutes— were able to obtain these employees' labor even if intentional—would violate Section only by lying about the purpose of the

206 realignment, claiming they were conducting conduct. While their decision to punish a traffic study. Mayor Fulop may have been animated by the same desire to exact political revenge, there Defendants argue they could not have were no allegations they defrauded their misapplied Port Authority employee labor federally funded employer in order to do so. because they did not receive a "personal pecuniary benefit." We disagree. Defendants Defendants also raise federalism concerns, had Port Authority employees do work they arguing the Government is improperly would not have otherwise done to further attempting "to police state and local officials their personal scheme. The fact Defendants in the conduct of their official duties." As we sought to benefit politically, not have observed, Congress has a uniquely monetarily, does not alter the fact they forced significant interest in safeguarding the Port the Port Authority to pay toll workers Authority, an interstate agency created by its overtime, and diverted the time of salaried consent. But we also believe federalism professional staff, in furtherance of no arguments are especially inapposite in the legitimate purpose. context of Section 666. We have described how Congress enacted Section Defendants argue this interpretation raises 666 specifically to bring state and local constitutional vagueness concerns. We officials within the scope of the federal disagree. At trial, the Government introduced criminal theft law. And as the Supreme Court evidence that, after Jersey City Mayor Steven has observed, "Congress was within its Fulop declined to endorse Governor Christie, prerogative to protect spending objects from the Governor's office directed state agencies the menace of local administrators." (including the Port Authority) to cancel meetings with Fulop and otherwise ignore In sum, the Government presented evidence him. In seeking to admit this evidence, the sufficient to prove Defendants fraudulently Government argued there was no danger of obtained, knowingly converted, or unfair prejudice because "[t]he mistreatment intentionally misapplied Port Authority of Mayor Fulop, while hardly reflective of employee labor in violation of Section good government, was not criminal and thus, 666(a)(1)(A). was less serious than the criminal conduct for which Defendants stand accused, conduct 2. that needlessly imperiled public safety in Fort Lee and directly inconvenienced thousands Finally, Defendants contend there was of people." Defendants contend it is not clear insufficient evidence to meet the $5,000 why their mistreatment of Mayor Sokolich is threshold because the Port Authority criminal, but their mistreatment of Mayor employees' wages are exempt under 18 Fulop was not, and that "[t]his inconsistency U.S.C. § 666(c)'s safe harbor for bona fide demonstrates the inherent arbitrariness of the compensation, and the Government government's interpretation of Section 666." quantified only $3,696 in toll workers' wages. Defendants again conflate motive with They also assert the costs the Port Authority

207 incurred in redoing the legitimate Center and presented witness testimony and detailed Lemoine traffic study cannot satisfy the payroll records. On the first day of trial, $5,000 threshold because they were not payroll records for the relevant Port aware of the study and the costs represent Authority employees were admitted by consequential damages, not the value of stipulation. These records indicate an hourly misapplied property. rate of $43.79 for Hwang, $52.11 for Chung, $47.24 for Patel, $79.59 for Wildstein, and The District Judge rejected these arguments, $153.67 for Baroni. Based on these rates and concluding "the Government introduced the hours Hwang, Chung, and Patel testified evidence that Defendants diverted Port they worked on the sham traffic study, the Authority personnel to do work that was not evidence shows their time was valued at part of the agency's 'usual course of business' $437.90 ($43.79 x 10 hours), $729.54 when reconfiguring the access lanes," and ($52.11 x 14 hours), and $661.36 ($47.24 x that "[t]he jury could reasonably find that the 14 hours), respectively. Cumulatively, the value of compensation paid to Port Authority three Port Authority traffic engineers personnel, losses from a ruined traffic study, provided unnecessary labor valued at and the value of the lanes and toll booths approximately $1,828.80. The value of the were not bona fide and satisfied the work done by Hwang, Chung, and Patel, $5,000.00 threshold." taken with the $3,696.09 spent on overtime toll workers, satisfies the $5,000 threshold. Without reaching the other costs presented to the jury (i.e., the value of the lanes and toll Furthermore, based on Wildstein's testimony booths themselves, and the costs of redoing about the amount of time he and Baroni spent the Center and Lemoine traffic study), we in furtherance of the scheme, the value of hold the Government presented sufficient their time was, at a minimum, $4,294.80. evidence that Defendants fraudulently This figure reflects approximately $1,989.75 obtained more than $5,000 worth of public for Wildstein's time ($79.59 x 25 hours) and employee labor. $2,305.05 for Baroni's time ($153.67 x 15 hours). As to the cost of compensating overtime toll booth workers, the Government introduced, The Government reminded the jury of this and Riva testified to, detailed payroll records evidence in summation: showing eleven overtime toll booth workers were paid $3,696.09. The Government Based on Port Authority payroll presented this number to the jury on a chart records and testimony you've heard, and reminded them of the specific figure in about $5,000 in Port Authority summation. salaries were paid for the time in connection for the lane reduction As to the value of the time of Port Authority work performed by Tunnels, Bridges professional staff, and of Baroni and and Terminals, Miss Hwang, Mr. Wildstein themselves, the Government also Chung, traffic engineering Mr. Patel,

208 as well as for Mr. Baroni and Mr. The charges involving the compensation paid Wildstein's time spent to facilitate to Baroni and Wildstein themselves are and conceal causing traffic problems different, however. The accusation is in Fort Lee. Those service[s] were essentially that they did not earn their salaries wasted. Those services were wasted in good faith by accepting payment for time for these lane reductions meant to spent defrauding their employer, so their punish the Mayor. compensation for that time could not have been "bona fide." Section 666(c) thus could Accordingly, we conclude the Government apply to exempt compensation paid to Baroni presented to the jury evidence sufficient to and Wildstein. " Whether wages are bona fide satisfy the $5,000 threshold. and earned in the usual course of business is a question of fact for the jury to decide." Defendants argue this compensation cannot count toward the threshold under the statute's In this case, the judge instructed the jury that exemption for "bona fide salary, wages, fees, "[p]roperty does not include bona fide salary, or other compensation." According to wages, fees or other compensation paid or Defendants, "all of the Port Authority staff expenses paid or reimbursed in the ordinary responsibly performed actual work, in good course of business," and that "[c]ompensation faith, for facially legitimate Port Authority for an employee's time and services obtained purposes." The Government responds this through deception is not legitimate or bona argument is "a red herring" because fide." This instruction allowed the jury "Defendants fraudulently obtained and properly to exclude Baroni and Wildstein's misapplied the services of [Port Authority] compensation under Section 666(c) only if it staff, not those employees' salaries." "But the found they were both bona fide and paid in best way of measuring the value of those the usual course of business. services," according to the Government, "was to calculate what portion of those employees' Because the jury in this case was provided salaries covered the time they spent only a general verdict form, we do not know unwittingly carrying out Defendants' how it determined the $5,000 threshold was vendetta." We agree. satisfied. The wire fraud convictions suggest the jury did not find Baroni and Wildstein's Section 666(c) has no application to the compensation "bona fide." But even if the services of the eleven overtime toll booth jury determined Baroni and Wildstein's workers, Hwang, Chung, or Patel. The compensation was subject to the Section Government offered evidence Defendants 666(c)'s safe harbor, the value of the services fraudulently obtained those public workers' of the eleven toll workers and of Hwang, services and labor; their salaries are merely a Chung, and Patel—which was not subject to measure of the loss incurred by the Port that exemption—was sufficient to satisfy the Authority when it compensated those statute's $5,000 threshold. individuals for unnecessary, sham work.

209 In light of our holding, we need not address in instructing the jury: (1) to consider the Defendants' argument the frustrated Center value of the Center and Lemoine study in and Lemoine traffic study is not cognizable determining whether the $5,000 threshold property under Section 666. was satisfied; (2) that the Government did not need to prove Defendants knew of the * * * specific property fraudulently obtained, knowingly converted, or intentionally Because the Government offered evidence at misapplied; and (3) that "[t]o intentionally trial sufficient to prove Defendants misapply money or property" means to fraudulently obtained the labor of Port intentionally use money or property Authority employees, and that the value of "knowing that the use is unauthorized or that labor exceeded $5,000, Defendants' unjustifiable or wrongful." Because any error sufficiency challenge must fail. was harmless beyond a reasonable doubt, we IV. will affirm.

Defendants also challenge the jury 1. instructions on the Section 666 counts and Defendants contend that, even if there is the District Judge's refusal to instruct the jury evidence sufficient to prove Section it was required to find Defendants intended to 666 violations, we should vacate their punish Mayor Sokolich. convictions and remand for retrial because Where, as here, a party has timely objected to the District Judge erroneously instructed the the trial court's jury instructions, we exercise jury to consider the value of the Center and plenary review in determining whether the Lemoine traffic study. Because we can affirm jury instructions stated the proper legal Defendants' convictions solely on the value standard. "We must 'conclude beyond a of public employee labor, we need not reach reasonable doubt that the jury verdict would the Center and Lemoine study. have been the same absent the error'" for the We have already detailed the trial evidence error to be harmless. Our inquiry "is not establishing the value of the public whether, in a trial that occurred without the employees' labor in addressing Defendants' error, a guilty verdict would surely have been sufficiency challenge. Our analysis there rendered, but whether the guilty verdict focused on whether the record, viewed in the actually rendered in this trial was surely light most favorable to the Government, unattributable to the error." provided a sufficient basis for a rational juror

to convict. But our inquiry here is different. A. Defendants contend that, even if the record Defendants raise three challenges to the jury contained sufficient evidence that the value instructions on the Section 666 counts. They of public employee labor exceeded $5,000, argue we should vacate and remand their we cannot be certain beyond a reasonable convictions because the District Judge erred doubt the jury actually considered all of that

210 time in light of its instructions. We disagree. because it was not presented a full calculation No reasonable juror could have failed to of the value of their hourly rate multiplied by credit the value of Port Authority employee the hours they claimed to have worked on the labor Defendants used to effect their sham study. We disagree. The parties fraudulent scheme, which alone admitted the relevant payroll records by satisfies Section 666(a)(1)(A)(i)'s $5,000 stipulation, the Government elicited threshold. testimony to establish the number of hours worked, and it reminded the jury of this Defendants do not assert any error in the jury evidence in summation, estimating that the instructions as to the value of the public value of the engineers' and Baroni and employee labor, and we find none. The Wildstein's time exceeded $5,000—which is Government presented overwhelming and correct. The amount was over $6,000. undisputed evidence—which we described in analyzing Defendants' sufficiency Accordingly, the value of the work challenge—concerning the amount of time performed by Hwang, Chung, and Patel, Port Authority employees spent in taken together with the $3,696.09 spent on furtherance of Defendants' scheme. overtime toll workers, satisfies the $5,000 threshold. The time Baroni and Wildstein As to the cost of compensating overtime spent plotting their fraud represents an tollbooth workers, the Government additional $4,295. introduced, and Riva specifically testified to, detailed payroll records showing eleven Because the jury was instructed overtime tollbooth workers were paid "[c]ompensation for an employee's time and $3,696.09. The Government presented this services obtained through deception is not number to the jury on a chart and referenced legitimate or bona fide," and the Government it in summation. presented overwhelming evidence Defendants fraudulently obtained Port The Government also elicited testimony from Authority employee services, the jury three members of the Port Authority's necessarily found all the toll worker and professional staff—Hwang, Chung, and professional staff time satisfied the $5,000 Patel—about the time they spent collecting threshold and was not subject to Section traffic data on the realignment, in furtherance 666(c)'s exclusion for bona fide of no legitimate Port Authority purpose, and compensation. As noted, even if the jury did testimony from Wildstein about the time he not credit Baroni and Wildstein's and Baroni spent in furtherance of the compensation, the value of employee time scheme. Detailed payroll records reveal the Defendants obtained nonetheless exceeds value of the traffic engineers' time was $5,000. approximately $1,828.80. Defendants' convictions on the wire fraud Defendants argue we cannot be confident the counts confirm this conclusion. The jury jury considered the traffic engineers' time found Defendants defrauded the Port

211 Authority and conspired to do so. The only The Government does not have to fraudulent scheme before them was one to prove that the Defendants knew of the cause a traffic blockage in Fort Lee by specific property obtained by fraud, conducting a sham traffic study. There is knowingly converted, or intentionally overwhelming evidence that the bridge lanes misapplied, or that the value of the were altered, eleven toll collectors worked property met or exceeded $5,000. additional overtime hours as a result, and the traffic study was conducted with the help of This addition to the Third Circuit's Model several well-paid Port Authority engineers. Jury Instruction was proposed by the Defendants do not argue the study was not Government. In proposed draft jury conducted. At trial, they asserted they did not instructions submitted to the trial court, the know it was a sham or barely participated in Government "propose[d] keeping [this] it—an argument the jury roundly rejected. language" on the following basis: Indeed, the jury was instructed that, if it As this Court recognized in denying found the Defendants believed the traffic Defendants' motions to dismiss the study was legitimate, it was a complete Indictment, the $5,000 requirement is defense. On appeal, they argue Baroni had a "jurisdictional element." The Third the authority to conduct the study even if it Circuit has long held that a was a sham. The jury could not have defendant's "knowledge of . . . concluded that Defendants conspired to jurisdictional fact[s]" is "irrelevant." conduct a sham traffic study but then ignored the value of the employee labor necessary to At the charging conference, Defendants effect that fraudulent scheme. As we have objected to this addition and requested the explained, the jury was presented with judge instruct the jury it had to be "at least overwhelming and undisputed evidence reasonably foreseeable what property would demonstrating the value of the toll workers' be obtained." The Government responded and professional staff's time exceeds $5,000. that "[r]easonably foreseeable goes to mens rea, which the Third Circuit has held clearly 2. does not extend to the jurisdictional elements of statutes like 666." The judge agreed and Next, Defendants contend the District Court declined to instruct the jury the property at erred in instructing the jury it did not need to issue had to be reasonably foreseeable to know of the specific property obtained. Defendants. Defendants raise this argument to challenge the inclusion of the Center and Lemoine Defendants argue this was error because the study in the jury instructions. Although we "Section 666's jurisdictional element is the agree the instruction was erroneous, the error requirement that the victim be a federal was harmless. program beneficiary," and that "[t]he $5,000 threshold is a de minimis exception, below The District Judge instructed the jury: which Congress simply chose not to

212 authorize prosecution." We agree Section exists; to instruct the jury otherwise would 666(b) is the statute's jurisdictional provision seemingly dispense with the intent in the sense that this provision provides the requirement. jurisdictional hook "tying the proscribed conduct to the area of federal concern But because we need not reach nor credit the delineated by the statute," here Congress's Center and Lemoine study to affirm Spending Clause power. But Section Defendants' convictions, the error was 666(a)(1)(A)(i)'s requirement that the value harmless. There is overwhelming evidence of affected property be at least $5,000 can be Defendants knew of the property fraudulently described as jurisdictional in the sense that it obtained or intentionally misapplied, is a "jurisdictional floor" below which including the work of fourteen of Baroni's Congress has determined there is insufficient subordinates at the Port Authority. federal interest in prosecution. 3. In any event, the affected property is not part of Section 666(a)(1)(A)(i)'s $5,000 Defendants next challenge the District requirement. That provision requires only Judge's definition of intentional that the property "is valued at $5,000 or misapplication as ambiguous. We disagree. more." The property is the direct object of the Following the Third Circuit Model Jury conduct element, Section 666(a)(1)(A), Instruction, the judge instructed the jury: which provides that one who "embezzles, To intentionally misapply money or steals, obtains by fraud, or otherwise without property means to intentionally use authority knowingly converts to the use of money or property of the Port any person other than the rightful owner or Authority knowing that the use is intentionally misapplies, property" violates unauthorized or unjustifiable or the statute. wrongful. Misapplication includes While the jury need not have found that the wrongful use of the money or Defendants knew the value of the property, it property for an unauthorized purpose, was error for the trial judge to instruct the even if the use actually benefitted the jury "[t]he Government d[id] not have to Port Authority. prove that the Defendants knew of the Defendants argue that "unjustifiable or specific property obtained by fraud, wrongful" is overbroad and ambiguous. knowingly converted, or intentionally Defendants raised this same argument in misapplied." Such an instruction runs the risk pretrial motions and at the charging of negating the statute's mens conference. The Government responded rea requirement and thus relieving the these are common terms and have been used Government of its burden of proof on an in numerous intentional misapplication cases essential element of the crime. We do not going back decades. Kelly's lawyer suggested believe, for example, one could intend to that the judge "just define what unjustifiable misapply something one does not know

213 and wrongful are," but when asked for Circuit. The First Circuit's 18 U.S.C. § proposed definitions, had nothing to offer. 656 (theft, embezzlement, or misapplication The judge overruled Defendants' objection by bank officer or employee) pattern because the terms are not "inherently vague" instructions define "willful misapplication" and were not "strong legal term[s]." to include "that [defendants] wrongfully used the bank's funds" without further clarifying On appeal, Defendants argue these terms are what "wrongfully" means. The Ninth and so broad that the jury could have convicted if Tenth Circuits both have pattern instructions it believed the lane realignment was "a bad for statutes containing "willful idea," unjustifiable "as a policy matter," or misapplication" that do not define those that Baroni should have sought Executive terms at all. Jurors are regularly trusted to Director Foye's approval. We disagree. understand the meaning of these ordinary words in criminal cases. Other instructions in the District Judge's thorough and comprehensive charge B. foreclose the possibility the jury convicted defendants for lawful but imprudent conduct, Defendants also challenge the District e.g., because the jury thought the lane Judge's refusal to instruct the jury it needed reductions were "a bad idea." These include to find Defendants intended to punish Mayor the requirement that $5,000 worth of property Sokolich in order to convict. They contend be stolen or misapplied and that the this error affects every count and misapplication be "for an unauthorized constructively amended the indictment, purpose." The judge also told the jury that it "permit[ing] the jury to convict based on had to be convinced beyond a reasonable conduct that was not unlawful." We disagree. doubt that the purpose of the lane reductions was not a legitimate traffic study and that Defendants requested the object of the Defendants' good faith would be a complete conspiracy be defined throughout the jury defense to the charges. Because the jury was charge as one "to misuse Port Authority instructed that Defendants could not be property to facilitate and conceal the causing convicted if they believed in good faith that of traffic problems in Fort Lee as punishment the reductions were part of a legitimate traffic of Mayor Sokolich." The trial court study, a jury following its instructions could disagreed, ruling "the purpose or the object of not have convicted Defendants based on its the conspiracy being to punish Mayor personal judgments about the wisdom and Sokolich goes to motive," which is "not an execution of the traffic study. element of the crime" and so "not an element that has to be proven." Moreover, we observe that this definition, or even broader language, is contained in the During deliberations, the jury sent a note model jury instructions in several of our sister asking: "Can you be guilty of conspiracy circuits. It is included verbatim in the Section without the act being intentionally punative 666 pattern jury instructions from the Eighth [sic] toward Mayor Socholich [sic]." The

214 judge responded: "Yes. Please consider this required to prove they "knowingly devised a along with all other instructions that have scheme to defraud or to obtain money or been given to you." property by materially false or fraudulent pretenses, representations, or promises," and In their post-trial motions, Defendants argued that they "acted with intent to defraud." This the punishment of Mayor Sokolich was "an describes the conduct proscribed by the essential element of each of the charged statute and the required mens rea. The intent offenses," and that the failure to instruct the to punish Mayor Sokolich may explain jury on this point relieved the Government of Defendants' motive—why Defendants its burden of proof. The trial judge again intended to defraud the Port Authority in this disagreed, explaining that "any punitive goal case—but it is distinct from mens rea and is Defendants may have had goes to their not a required element of any of the charged motive for violating the charged statutes, offenses. [but] is not an essential element of any of the crimes charged." We agree. Indeed, following the Third Circuit Model Jury Instructions, the District Judge charged Defendants argue the "intent to punish the jury on this critical difference between Sokolich [is] an essential element of the mens motive and intent: rea of the charged offenses." Once again, Defendants conflate motive with mens Intent and motive are different rea intent and conduct. As we recently concepts. Motive is what prompts a explained in Hassan v. City of New York: person to act. Intent refers only to the state of mind with which the [T]here's a difference between particular act is done. Personal "intent" and "motive." "[A] defendant advancement and financial gain, for acts intentionally when he desires example, are motives for much of a particular result, without reference human conduct. However, these to the reason for such desire. Motive, motives may prompt one person to on the other hand, is the reason why intentionally do something perfectly the defendant desires the result." In acceptable, while prompting another other words, "intent" asks whether a person to intentionally do an act that person acts "intentionally or is a crime. Motive is not an element accidentally," while "motive" asks, of the offense with which a defendant "If he did it intentionally, why did he is charged. Proof of bad motive is not do it?" This fundamental "distinction required to convict. Further, proof of between motive and intent runs all bad motive alone does not establish through the law." that the defendant is guilty. And proof of good motive alone does not The District Judge properly instructed the establish that the defendant is not jury, for example, that to find Defendants guilty. Evidence of the defendant's guilty of wire fraud, the Government was

215 motive may, however, help you to We now turn to the civil rights counts. determine his or her intent.

The judge specifically instructed the jury that V. evidence of motive may be relevant to establishing mens rea, thus allowing a juror Finally, Defendants challenge the sufficiency who found evidence of motive lacking to vote of Counts 8 and 9 of the indictment. In those for acquittal. Defendants were free to counts, the grand jury charged Defendants argue—and did argue—that they were not with conspiring to violate, and substantively motivated by any desire to punish Mayor violating, the civil rights of Fort Lee Sokolich. The jury's guilty verdict residents. It alleged "[t]he object of the necessarily demonstrates no juror found conspiracy was to interfere with the localized motive so lacking as to raise a reasonable travel rights of the residents of Fort Lee for doubt concerning Defendants' guilt. the illegitimate purpose of causing significant Moreover, as we have explained, the traffic problems in Fort Lee to punish Mayor comprehensive and thorough jury charge Sokolich," and that Defendants "knowingly created no risk that Defendants were and willfully deprived the residents of Fort convicted on the basis of lawful conduct. Lee of the rights, privileges, and immunities secured by the Constitution and laws of the And while the grand jury included language United States, namely, the right to localized describing Defendants' motive to punish the travel on public roadways free from mayor in the indictment, that language— restrictions unrelated to legitimate which did not describe an essential element government objectives." Defendants argue of the charged offense—was merely the substantive due process right the grand surplusage. Because the jury instructions did jury identified—"the right to localized travel not modify the essential elements of the on public roadways free from restrictions offenses as charged in the indictment, there unrelated to legitimate government was no constructive amendment. objectives"—is not clearly established and thus cannot form the basis of the civil rights Accordingly, we find no error in these offenses charged in Counts 8 and 9. instructions or the District Judge's response to the jury's question. Defendants' attack on the sufficiency of Counts 8 and 9 of the indictment is a legal * * * question over which our review is plenary. "[W]hether the alleged violation of Because Defendants' sufficiency challenges substantive due process was clearly to their wire fraud and Section 666 offenses established . . . is a question of law over fail, and because we find any error in the jury which our review is unrestricted." instructions was at worst harmless, we will affirm Defendants' judgments of convictions Section 241 makes it a crime for "two or as to the wire fraud and Section 666 offenses. more persons [to] conspire to injure, oppress,

216 threaten, or intimidate any person in any more times through certain overcrowded State, Territory, Commonwealth, Possession, streets during evening hours, we held there is or District in the free exercise or enjoyment "[a] due process right of localized movement of any right or privilege secured to him by the on the public roadways," which we Constitution or laws of the United States," alternately described as "the right to move and Section 242 makes it a crime for a person freely about one's neighborhood or town, "under color of any law, statute, ordinance, even by automobile." We further held no regulation, or custom, to willfully subject[] other constitutional provision could provide any person in any State, Territory, the source of the right. We nonetheless Commonwealth, Possession, or District to the upheld the ordinance because it was narrowly deprivation of any rights, privileges, or tailored to meet the significant city objectives immunities secured or protected by the of protecting public safety and reducing Constitution or laws of the United States." intense traffic congestion.

"[I]n lieu of describing the specific conduct it Contrary to the District Court's holding, forbids, each statute's general terms however, and according to the Supreme incorporate constitutional law by reference." Court's qualified immunity The statutes' scope is limited to "rights fairly precedent, Lutz alone could not have put warned of, having been 'made specific' by the Defendants on notice that they were violating time of the charged conduct." The Supreme a constitutional right. "A Government Court has held that "the object of the 'clearly official's conduct violates clearly established established' immunity standard is not law when, at the time of the challenged different from that of 'fair warning' as it conduct, 'the contours of a right are relates to law 'made specific' for the purpose sufficiently clear' that every 'reasonable of validly applying" the criminal civil rights official would have understood that what he statutes. Accordingly, we apply the same test is doing violates that right.'" "To determine as in qualified immunity cases, asking whether the right is clearly established, we whether the right allegedly deprived was look at the state of the law when the [conduct] clearly established. occurred," here 2013. The Supreme Court has suggested that a single binding case from Before trial, Defendants moved to dismiss the the defendant's jurisdiction is insufficient to indictment, arguing that there is no give notice that certain conduct could lead to constitutional right to localized travel on criminal punishment. Instead, "[w]e look first public roadways and that, even if such a right to applicable Supreme Court precedent." A did exist, it had not yet been clearly relevant Supreme Court holding ends the established. As the District Court noted when inquiry. "[I]f none exists, it may be possible denying the motion, our Court recognized that a 'robust consensus of cases of persuasive a Fourteenth Amendment due process right authority' in the Court[s] of Appeals could to intrastate travel nearly three decades ago. clearly establish a right for purposes of Specifically, in reviewing a city ordinance qualified immunity." that prohibited cars from driving three or

217 The Supreme Court has never recognized an Although Lutz is both clear and binding in intrastate travel right. Far from a "robust our jurisdiction, this area of law as a whole is consensus" in the Courts of Appeals that the far from settled. Based on the Supreme right exists, the law across the circuits is Court's qualified immunity precedent, we uncertain. And most often our sister circuits hold the District Court erred in have considered the matter in reviewing concluding Lutz, standing alone, provided challenges to municipal residency fair warning that Defendants conduct was requirements, not government action illegal, especially in view of the state of the prohibiting free movement in public spaces, law in our sister circuits. "[W]hether or not undermining the notice those opinions might the constitutional rule applied by the court have provided to Defendants as to the below was correct, it was not 'beyond criminal nature of their conduct. debate.'"

In addition to our opinion in Lutz, the First, Accordingly, we will reverse and vacate Second, and Sixth Circuits have recognized a Defendants' civil rights convictions and right to intrastate travel, though they have remand with instructions to dismiss Counts 8 described it at varying levels of generality. and 9 of the indictment under Federal Rule of Criminal Procedure 12(b). Because we On the other hand, the Fourth, Fifth, Seventh, reverse and vacate Defendants' convictions, Eighth, and Tenth Circuits have treated the we need not reach their arguments question more skeptically, often hesitating to concerning the jury instructions on the civil recognize a due process intrastate travel right rights counts. and sometimes explicitly rejecting theories rooted in other constitutional provisions. VI.

The D.C. Circuit is internally conflicted but For the foregoing reasons, we will affirm has not yet set precedent. A plurality of the Defendants' judgments of convictions as to Court sitting en banc suggested a due process the wire fraud and Section 666 counts right to intrastate travel might exist but did (Counts 1 through 7), and we will reverse and not reach the question. In separate opinions, vacate only as to the civil rights counts another plurality concluded a right to (Counts 8 and 9). Because we have reversed intrastate travel exists and ought to be subject and vacated two counts of the indictment, we to intermediate scrutiny. will vacate Defendants' sentences on the remaining counts of convictions. We will Simply put, although four circuits (including remand with instructions to dismiss only our own) have found some form of a Counts 8 and 9 of the indictment and to constitutional right to intrastate travel, there resentence Defendants on the remaining is hardly a "robust consensus" that the right counts of conviction. exists, let alone clarity as to its contours.

218 “High Court Takes on ‘Bridgegate’ Appeal”

Law360

Bill Wichert

June 28, 2019

The U.S. Supreme Court on Friday agreed to Matthew Reilly, a spokesman for the U.S. hear an appeal in the so-called Bridgegate Attorney's Office for the District of New case against two former associates of ex-New Jersey, said Friday that the office declined to Jersey Gov. Chris Christie who were comment. convicted of reducing local access lanes to The Third Circuit’s Nov. 27 precedential the George Washington Bridge in a political decision upheld the bulk of the charges revenge scheme. against Kelly and Baroni, but tossed claims they deprived residents of Fort Lee, New The justices granted a petition from Bridget Jersey, of their civil rights to travel freely. Anne Kelly, a onetime aide to the governor, to take a second look at a Third Circuit Besides those civil rights charges, they were opinion last fall that upheld most of the convicted at trial in November 2016 of convictions for her and former Port Authority misusing the Port Authority’s resources and of New York and New Jersey executive committing wire fraud. William E. Baroni Jr. Following the circuit opinion, a New Jersey “I am grateful and encouraged that the federal judge in February resentenced Baroni Supreme Court has decided to hear my case, to an 18-month prison sentence instead of the and hopeful that this process will provide two-year term he originally received. In another opportunity for the truth to come out April, the judge handed down a 13-month — for my sake, and more importantly, for the prison sentence to Kelly, down from the 18 sake of my children. I am thankful to the months she initially faced. court for granting this opportunity,” Kelly said Friday in a statement. In fighting their convictions, Kelly and Baroni have blasted the government’s theory Baroni attorney Michael A. Levy of Sidley as improperly turning “routine” political Austin LLP told Law360 on Friday, “Bill activity into criminal conduct. Kelly pointed Baroni is grateful to the Supreme Court for in her petition to “the nearly limitless array of choosing to accept this case, and he is routine conduct that is criminal” under the confident that the court will conclude that circuit opinion. neither he nor Bridget Kelly committed any crime.”

219 “Under the decision below, any official week in September 2013, causing extensive (federal, state, or local) who conceals or traffic jams in Fort Lee, as retaliation against misrepresents her subjective motive for borough Mayor Mark Sokolich for not making an otherwise-lawful decision — endorsing Christie’s 2013 reelection bid. including by purporting to act for public- policy reasons without admitting to her The three conspirators concocted a bogus ulterior political goals, commonly known as story that the lane reductions were for a political ‘spin’ — has thereby defrauded the traffic study, prosecutors said. Baroni and government of property (her own labor if Kelly both testified during the trial that they nothing else),” according to the petition. did not take part in the political payback scheme, claiming that Wildstein duped them Urging the high court to pass on the appeal, into believing the lane closures were for a the government said the fact that Kelly was legitimate traffic study. “politically motivated to carry out her fraudulent scheme is irrelevant to her guilt,” Wildstein, who pled guilty and cooperated adding that she and Baroni fraudulently with the government, was sentenced in July obtained Port Authority employees’ labor 2017 to three years of probation. under the guise of conducting a traffic study. The government is represented by Jeffrey B. “Whether petitioner and Baroni were Wall of the U.S. Solicitor General's Office, motivated by political animus toward the and Brian A. Benczkowski and Andrew mayor of Fort Lee or by a desire for personal Laing of the U.S. Department of Justice's gain, their criminal liability would be Criminal Division. unchanged, because their conduct constituted a ‘scheme or artifice to defraud, or for Kelly is represented by Yaakov M. Roth, obtaining money or property by means of Michael A. Carvin, Anthony J. Dick and false or fraudulent pretenses,’” according to Vivek Suri of Jones Day and Michael D. the government’s opposition brief. Critchley of Critchley Kinum & Denoia LLC.

Prosecutors have said that Kelly and Baroni The case is Bridget Anne Kelly v. U.S., case conspired with former Port Authority number 18-1059, in the Supreme Court of the executive David Wildstein to close two of United States. three local access lanes to the bridge during a

220 “Ex-Christie Aide Gets Supreme Court Hearing on Bridge Scandal”

Bloomberg

Greg Stohr

June 28, 2019

The U.S. Supreme Court will decide whether Ministry of Truth for every public official in two allies of former New Jersey Governor the nation,” she argued in her appeal. Chris Christie were improperly convicted for their roles in the George Washington Bridge ‘Traffic Problems’ lane-closing scandal, accepting a case that Kelly, who had been Christie’s deputy chief could make it harder to prosecute public of staff, gained notoriety because of an email officials for fraud. she sent about a month before the closing of The justices agreed to hear an appeal from two access lanes to the bridge. “Time for Bridget Anne Kelly, who has been scheduled some traffic problems in Fort Lee,” Kelly to start a 13-month prison term next month. wrote. The case will also affect Bill Baroni, who was Prosecutors said Kelly worked with Baroni, convicted alongside Kelly and is serving an then the deputy executive director of the Port 18-month sentence. Authority, to close the lanes under the guise The convictions stem from the of conducting a traffic study. 2013 “Bridgegate” scheme, which created Christie, a Republican, denied knowledge of crippling traffic jams to punish the mayor of the lane closings and wasn’t charged in the Fort Lee, New Jersey, for failing to endorse plot, though it helped end his presidential Christie’s re-election bid that year. A federal ambitions. His second term as governor appeals court upheld Kelly’s and Baroni’s ended in 2018. fraud convictions while tossing out other charges. The Trump administration urged the Supreme Court not to hear the appeal. In Kelly contends that decision stretched the court papers, the Justice Department said the law so far that public officials will now risk scheme met the requirements of the federal prison time when they harbor secret personal fraud statutes because it forced the Port or political motives for a decision they make. Authority of New York and New Jersey, The ruling “is a playbook for how to which runs the bridge, to pay thousands of prosecute political adversaries, and dollars of overtime wages. transforms the federal judiciary into a Kelly “does not dispute the trial evidence showing that the Port Authority spent several

221 thousands of dollars paying employees for set up meetings and take other informal unnecessary work that served no legitimate actions on behalf of a supporter. Port Authority function,” the government argued. The court will hear arguments and rule in the nine-month term that starts in October. The Supreme Court in recent years has narrowed the reach of the federal fraud laws. The case is Kelly v. United States, 18-1059. In 2016 the court tossed out the conviction of former Virginia Governor Bob McDonnell, saying it wasn’t clear he had done more than

222 “Supreme Court to hear appeal in Bridgegate case”

Politico

Ryan Hutchins

June 28, 2019

The U.S. Supreme Court on Friday said it will determination that she ‘lied’ by purporting to review the case against a former aide to New act in the public interest or by concealing her Jersey Gov. Chris Christie who was ‘political’ purposes,” attorneys Michael convicted of helping to orchestrate Critchley and Yaakov M. Roth argued in Bridgegate, keeping alive the years-long saga their brief to petition the court to hear the surrounding the 2013 lane closures at the case. “There is no end to the (bipartisan) George Washington Bridge. mischief such a regime would facilitate, or the chilling effect it would carry.” The court, its term ending, said it would hear an appeal by Bridget Anne Kelly, a former Kelly and Baroni, who has also joined in the deputy chief of staff to Christie who Supreme Court appeal, had previously conspired with other allies of the governor to exhausted all other legal avenues after having create the massive traffic jam — now said to some of their convictions tossed by an be a bizarre act of political retribution. appeals court, leading to slight reductions in their sentences. In November, a panel of Kelly and Bill Baroni, a former Republican judges sitting on the U.S. Court of Appeals state lawmaker who served as Christie’s for the Third Circuit upheld the seven wire deputy executive director of the Port fraud and conspiracy counts, but dismissed Authority of New York and New Jersey, two civil rights-related convictions. were both convicted in 2016 for roles in the scandal. Baroni is serving an 18-month The duo worked with a third conspirator — federal prison sentence, while Kelly is David Wildstein, who pleaded guilty and scheduled to start serving a 13-month term on testified against them — to orchestrate the July 10. political retribution scheme, which Wildstein said was designed to punish the Democratic While the Supreme Court did not say what, mayor of Fort Lee, N.J., for refusing to specifically, it will review, Kelly has argued endorse Christie's reelection campaign. the case misapplied federal fraud statutes to Wildstein received probation and is currently ordinary political conduct. operating a political news site in New Jersey.

“If there is one thing this country does not Over the course of several days in September need right now, it is a rule of law allowing a 2013, the three closed off two local access public official to be locked up based on a jury lanes to the George Washington Bridge

223 during the morning commute, clogging roads Kelly was deputy chief of staff in charge of for hours in the densely-populated Bergen the Christie administration's Office of County town. Kelly sent Wildstein the now- Intergovernmental Affairs — an organization infamous email stating that it was "time for that, according to testimony from numerous some traffic problems in Fort Lee," sparking witnesses testimony and other information the lane closures. that came out during the trial, worked as a publicly-funded arm of Christie's reelection While Kelly has maintained she did not know campaign. the true reason for lane closures, believing them to be part of a traffic study, she testified Kelly and Baroni argued that prosecuting under oath that Christie knew about the plan them under that federal law would ahead of time — an allegation the former criminalize normal political conduct. The governor had repeatedly denied. appeals court disagreed.

After being resentenced earlier this year in "To execute their scheme, they conscripted U.S. District Court in New Jersey, Kelly fourteen Port Authority employees to do unleashed on Christie, who had served as the sham work in pursuit of no legitimate Port head of President Donald Trump’s transition Authority aim. That Defendants were and is now an attorney in private practice and politically motivated does not remove their a political commentator for ABC News. intentional conduct from the ambit of the federal criminal law," Judge Anthony Scirica Kelly called Christie a “bully” and said he wrote in the circuit court opinion. was able to “escape justice.” In Kelly's request for a rehearing before the "The fact that I am on these steps in place of full 3rd Circuit, which was denied, Critchley others from the Christie administration — and Roth argued the court's ruling could set a including the governor himself — does not set a "dangerous and untenable." prove my guilt," Kelly said outside the federal courthouse in April. "It only proves "Taken seriously, it would allow any federal, that justice is not blind. It has favorites. It state, or local official to be indicted based on misses the mark. It misses the truth. And it nothing more than the (ubiquitous) allegation picks winners and losers that are sometimes that she lied in claiming to act in the public beyond anyone's control." interest," the lawyers wrote, giving examples of potential convictions. "These implications The federal government's case against Kelly are astounding — and grave. There is nothing and Baroni relied largely on a law barring easier than accusing a public official of officials from misapplying property from an harboring secret political motives for his organization receiving federal funds — in decisions." this case the Port Authority, a bistate agency that operates the bridge.

224 “Why the ‘Bridgegate’ Scandal Could Backfire on Prosecutors”

The New York Times

Nick Corasaniti

July 3, 2019

Federal prosecutors have often relied on a “There has been this stream of cases coming powerful criminal statute to bring high- from the Supreme Court that has continued to profile corruption cases, including limit prosecutorial discretion and the college admissions scandal that ensnared prosecutorial authority when it comes to Hollywood celebrities and a string of bribery corruption cases,” said Jessica Tillipman, an investigations that targeted college basketball assistant dean at the George Washington programs. University Law School. “So the fact that they took on another corruption case to me signals But now, a key theory of that statute could be that there’s a good chance that the statutes gutted because of a challenge by two will be further narrowed once again.” defendants in another well-known case — “Bridgegate,” the September 2013 closing of The bridge scheme drew national attention access lanes to the George Washington and undermined the presidential ambitions of Bridge, which connects Manhattan and New the then-New Jersey Gov. Chris Christie. Ms. Jersey, to punish a mayor for refusing to offer Kelly and Mr. Baroni, top aides to Mr. a campaign endorsement. Christie, were charged with orchestrating the closing of the lanes leading to the bridge. The United States Supreme Court, in a decision that surprised legal experts, last At issue in the case is a fraud theory used to week agreed to hear an appeal of the prosecute under the mail and wire fraud defendants’ corruption convictions in a move statutes known as a “right to control.” It rests that could significantly weaken the ability of on the idea that the owner of an asset is prosecutors to go after what they determine defrauded when somebody uses that asset to be political malfeasance. and lies about what they are using it for. In the college admissions scandal, for example, The court’s decision to take on the appeal by prosecutors said offers of acceptance to the defendants, Bridget Anne Kelly and Bill universities were misused. Baroni, suggests that the justices are open to overturning their convictions, legal experts The court has already significantly raised the said, and follows other rulings that have bar when it comes to prosecuting politicians, chipped away at federal corruption laws. and what was once viewed as illegal is being increasingly regarded as normal political behavior, legal experts said.

225 One of the most significant decisions came in on charges that the senator had provided 2016, when the Supreme Court overturned favors to a wealthy donor in exchange for the corruption conviction of former Gov. Bob lavish gifts. McDonnell of Virginia, who had been accused of accepting luxury items, loans and Federal prosecutors abandoned efforts to try vacations in exchange for helping a local Mr. Menendez after the judge threw out businessman. several counts of the charges, saying that the prosecution had not proved a quid pro quo In its unanimous ruling, the court said the under the definition laid out by the gifts were permissible because in setting up McDonnell decision. meetings and making introductions for the businessman, Mr. McDonnell had not The appeal in the Bridgegate case is now betrayed his office or, as the law says, taken testing another aspect of federal corruption an “official act.’’ To prove corruption, the law. court said there had to be a clear official “What’s always marked this case from being government decision or act, essentially a little different than standard corruption creating a more stringent definition of the cases was that this wasn’t about personal law. gain, or at least personal gain in a monetary The McDonnell decision upended several sense,” said Daniel C. Richman, a professor high-profile federal prosecutions, including at Columbia Law School and a former federal cases involving Sheldon Silver, the once prosecutor. “If money isn’t nakedly involved, powerful speaker of the New York you end up having more complex and Assembly, Dean G. Skelos, the former contestable liability theories.” majority leader of the New York Senate, and The defense team for Ms. Kelly and Mr. Senator Robert Menendez of New Jersey. All Baroni argue that even if they did hatch a three had already been indicted at the time of scheme to block the access lanes, which they the decision. have denied, it would not constitute a crime A federal appeals court overturned the because there was no personal financial or convictions of Mr. Silver and Mr. Skelos. material gain, and the agency that operates Still, appellate judges made clear that the bridge, the Port Authority of New York sufficient evidence existed to prove the men and New Jersey, was never defrauded. had acted corruptly. In the end, the defense lawyers argued, the Mr. Silver and Mr. Skelos were found guilty affair was nothing more than the rough and at new trials after juries were presented a tumble of political gamesmanship, likening it more narrow definition of what constituted to a mayor directing his public works corrupt behavior. department to plow the streets of his political opponents last during a snowstorm. In Mr. Menendez’s case, a judge declared a mistrial after jurors could not reach a verdict

226 Zephyr Teachout, a law professor at Fordham many thought would be the final chapter in University and a former candidate for New the protracted scandal. York attorney general, said it’s likely the defense will argue that Bridgegate was just Now, following the Supreme Court’s politics. “And this court has been extremely decision to take up the case, Mr. Baroni has sympathetic to that kind of argument,” she been released from prison on bail and Ms. said. Kelly will not have to report to prison until the Supreme Court renders its decision. The hearing before the Supreme Court, likely in December or January, will prolong a Michael Critchley, a lawyer for Ms. Kelly, political saga that has plagued Mr. Christie has steadfastly maintained that federal and his allies for more than five years. prosecutors stretched the boundaries of the law to make a case against his client. Sparked by the now infamous “Time for some traffic problems in Fort Lee” email sent “We’ve always said this was an indictment in by Ms. Kelly, the scandal engulfed the search of a crime,” he said. “You may Christie administration, leading question political motives, but the Supreme to indictments for Mr. Baroni and Ms. Kelly Court will say are political motives enough in 2015, and their conviction in November for holding someone criminally liable for an 2016. offense?”

While the Christie administration said the The United States solicitor general’s office lane closings were ostensibly part of a traffic had recommended that the Supreme Court study, an investigation revealed that they not take up the case, pointing to the were political retribution against the mayor “approximately $1828.80 for the labor of Fort Lee, a town at the foot of the George necessary to carry out the phony traffic Washington Bridge, for not endorsing Mr. study” as evidence that the Port Authority Christie’s re-election. Mr. Christie has denied was indeed defrauded of resources. any knowledge or involvement in the The solicitor general’s office also took scheme. exception to the mayor and snowplow The closings led to days of massive traffic analogy. jams near the world’s busiest bridge. “Those examples, in contrast to the facts of Both Ms. Kelly and Mr. Baroni appealed her case, involve officials who possess their convictions and were able to get part of unilateral authority over discretionary their sentences reduced. In February, Mr. resources, therefore do not need to lie to Baroni was sentenced to 18 months in prison. allocate those resources,” the solicitor He reported to a federal corrections facility in general’s office wrote. Pennsylvania in April. Ms. Kelly But now that the court has agreed to hear was sentenced to 13 months and was to arguments, some legal experts say the case report to prison later this summer, in what

227 could again reframe what is acceptable political conduct.

“One does wonder, implicitly, how the Supreme Court got to this extraordinarily cynical view of politics and public service where this dodgy behavior is just part and parcel of the political game,” said Dan Weiner, a senior counsel at the Brennan Center for Justice. “I would like to see the courts grapple more earnestly with the thinking that, whether these decisions are correct or not, allowing conduct like this to go unsanctioned and any suggestion that this is just politics is just corrosive. And that has done a lot of damage.”

228 “Baroni sentenced to 2 years in prison for role in Bridgegate scandal; Kelly gets 18 months”

Politico

Ryan Hutchins

March 29, 2017

Two former allies of Gov. Chris Christie into the hallway. Kelly wiped away tears as were sentenced Wednesday to prison terms she learned her future and dabbed her eyes for their roles in the George Washington with a tissue as she left the courtroom. Bridge lane closures, a bizarre political stunt that was designed to help the governor’s Kelly and Baroni were convicted in career but ended up halting his rapid march November after a dramatic, six-week trial in toward the White House. which David Wildstein, a dark political operative who admitted masterminding the Bill Baroni, a former Republican state scheme, testified against them in hopes of senator who served as Christie’s top reducing his own yet-to-be-determined appointee at the Port Authority of New York punishment. A jury found Kelly and Baroni and New Jersey, was sentenced to a 24 guilty on multiple counts of conspiracy, fraud months of incarceration. Bridget Anne Kelly, and civil rights violations. Baroni’s co-defendant and a former deputy chief of staff to Christie, was sentenced in the All three attempted to implicate Christie afternoon to 18 months in prison. when they took the witness stand last year, but the governor maintains he knew nothing Both will also serve one year of probation, about the plot, which was aimed at the complete 500 hours of community service Democratic mayor of Fort Lee who refused and pay fines and restitution, U.S. District to endorse his 2013 re-election bid. The lane Court Judge Susan Wigenton ruled. closures caused days if gridlock in Fort Lee, where the bridge is located. “What occurred in September 2013 was an outrageous abuse of power,” Wigenton told a Both Baroni, 45, and Kelly, 44, continue to packed court room. “The fact there was no maintain their own innocence and plan to financial gain underscores the significance of appeal their convictions, saying they thought power to create chaos at the drop of a hat.” all along that the lane closures were part of a legitimate traffic study, not the act of political She called it a “sad day for the state of New retribution the incident is now known to be. Jersey.” In court on Wednesday, Baroni apologized Baroni remained stoic as the judge read the for not stopping the plan and said he’d let sentence, and was smiling when he walked

229 everyone down — friends, family and the brazen and vindictive abuse of power,” they people he was supposed to be serving in his wrote in the memo — and should each job at the bi-state agency. receive a “meaningful prison sentence.”

“I failed,” said Baroni, wearing a dark suit “Those are the actions out of the playbook of and clutching his remarks in his hand. “I some dictator in a banana republic,” assistant made the wrong choices, took the wrong U.S. Attorney Lee Cortes said in court. “It is guidance, listened to the wrong people.” incomprehensible that such actions could take place here in the United States.” Kelly’s lead attorney, Michael Critchley, said his client was reluctant to apologize for fear Defense attorneys for Baroni and Kelly of hurting her chance on appeal. He said the argued for probation, given the service both balancing act felt “like schizophrenia.” have provided to their communities, as well as the lack of prior criminal histories. Baroni, But Kelly, through tears, did say she was his attorneys noted, has become a notable remorseful. figure in the gay-rights movement, overcame obesity and was an informant for the FBI. “I do not take the allegation in this case lightly,” Kelly said, her voice cracking as she And Kelly, her lawyer said, is a single mother stood in court. “I realize how disruptive and of four who’s engaged in civic and charitable frustrating the lane realignment was for the work and remains deeply tied to her residents of Fort Lee. I never intended to community. She’s “no monster,” her lawyers harm anyone. I am sorry if my actions in any wrote in their memo. way caused any harm.” Critchley spoke at length about how he’d Both defendants faced as much as 20 years in come to care deeply about Kelly and her prison under the most serious counts for family, which he said had suffered greatly. which they were convicted. Sentencing He said Kelly’s daughter dropped her college guidelines call for much shorter terms, and plans and her younger children were having prosecutors initially recommended in a pre- trouble at school. sentencing memorandum that each receive a sentence at the bottom or below a 37- to 46- “Your mother has been a poster child for the month range. past three years on every TV and every newspaper in the region,” Critchley said. The prosecutors were more specific on “They see the gossip when they walk into a Wednesday, suggesting a term of 24 months store.” to 30 months and also that Kelly receive a slightly more lenient sentence. The sentences, Wigenton said, took into account many of the personal issues raised. But the prosecutors said in court and in their She said Baroni, who is a lawyer, received a brief earlier in the week that Baroni and Kelly tougher sentence because of his position and committed serious crimes — “a stunningly background in government and politics.

230 Both defendants, the judge said, had betrayed closures were part of a political revenge the public trust and did so for political scheme. One message, sent by Kelly to reason. Wildstein, came to symbolize the the whole affair: “Time for some traffic problems in “The orchestrated misuse of the Port Fort Lee.” Authority resources was for only one reason, and that was to send a message,” Wigenton The two were accused of closing lanes to the said. “The situation could have been fatal.” bridge in an effort to punish Mark Sokolich, the Democratic mayor of the Fort Lee, after Wednesday's sentencings come just weeks he refused to back Christie’s re-election. after David Samson, a longtime friend and mentor to Christie, was sentenced in a The plan caused days of gridlock near the separate corruption case spawned out the bridge as the mayor’s pleas for help were investigation into the lane closures. repeatedly ignored — at the Port Authority, where Baroni was deputy executive director, Despite admitting he shook down United and in Trenton, where Kelly was in charge of Airlines so he could more easily reach his intergovernmental affairs. South Carolina estate, Samson, a former Port Authority chairman, was sentenced to spend In an interview on Wednesday, Sokolich said a year confined to that very same house, the whole ordeal remained to him a “mind- known as “Rest Period.” Samson, 77, also a boggling series of events.” former state attorney general, avoided any prison time and was given four years’ He said he thought the verdict was just. probation, 3,600 hours of community service “I have nothing but respect for the court and and a $100,000 fine. Judge Wigenton,” Sokolich, who testified at Samson’s terms are sure to draw comparisons the trial, said after Baroni was sentenced. “I this week to the sentences given to Baroni am certainly not a person to question it. I and Kelly, neither of whom were accused of thought it was fair.” doing anything for their own personal The trial also included testimony from some benefit. of Christie’s closest aides and advisers. There The story of their undoing is one that were numerous revelations about how the captivated the political world from the governor’s office was used, from the earliest moment it was revealed in early 2014, days of his first term, to advance the months after Christie won re-election and just governor’s political interests. his presidential ambitions were being given Testimony and evidence showed in serious attention. remarkable detail how Christie’s Office of That all evaporate when reporters were Intergovernmental Affairs — what was, on leaked a series of emails and text messages paper, a liaison unit for local officials — was that revealed for the first time that the lane used as a political shop that dangled all sorts

231 of “goodies” in front of mayors who were Numerous witnesses — including several considered targets for endorsing the who are still in his good graces and were Republican’s re-election bid. never accused of any wrongdoing — said Christie was told of the lane closures long The office worked furiously to gain the trust before he said he was. There was also the of politicians from both parties. Mayors in assertion that Christie’s campaign manager, some of the smallest of towns were meant to Bill Stepien, now a top aide to President feel special. They were offered tickets to NFL Donald Trump, was aware of Wildstein’s games, breakfast with the governor, small plans. grants from the Port Authority, and even steel recovered from the ashes of the World Trade The governor, who appeared with the Center. president at the White House on Wednesday for a discussion about opioid addiction, has Those who stood in the way faced the said none of that is true. governor’s wrath, some testified. Asked about the sentencing by "Today “It was clear to me that the environment in Show" host Matt Lauer on Wednesday Trenton created a culture that you’re either morning, Christie declined to comment on with us or you’re against us,” Wigenton said whether he thought the two deserve jail time. at the sentencing. “The judge will do what the judge believes is Christie was mentioned at every turn during appropriate, Matt, and it's not my role or the trial. There were claims he not only knew anybody else's role other than the judge in about the lane closures but approved the plan, that courtroom who has passed sentence on believing it to be the traffic study Kelly and people who have committed crimes,” Baroni had spoken about. Christie said from the White House lawn.

232 “Bridgegate convictions for Baroni and Kelly mostly upheld”

Politico

Matt Friedman

November 27, 2018

Former Christie administration appointee anyone’s constitutional rights and his Bill Baroni and administration official sentence has now been vacated,” Michael A. Bridget Anne Kelly will likely serve at least Levy, a Sidley Austin LLP partner, said in an some prison time, as a federal appeals panel emailed statement. “What remains from this upheld most of their convictions over their unprecedented prosecution are convictions roles in the 2013 Bridgegate scandal. only for the supposed misapplication of a few thousand dollars of Port Authority resources In a decision issued Tuesday, the Third over less than one week. We disagree that any Circuit Court of Appeals upheld the seven resources were misapplied and are evaluating wire fraud and conspiracy counts Kelly and further appellate options.” Baroni were convicted of in 2016 over the George Washington Bridge lane closures “While we are pleased that the Third Circuit three years earlier — an act of political rejected the civil rights charges, we are retribution against Fort Lee’s mayor, who disappointed that the Court did not similarly refused to endorse Gov. Chris Christie’s reject the government’s unprecedented reelection. application of the wire fraud and misapplication statutes,” Michael Critchley, The three-judge panel did dismiss two civil a lawyer representing Kelly, said in an email. rights-related convictions, meaning Baroni “We still believe that the remaining charges and Kelly — who last year were sentenced to are not legally sustainable and intend to 24 and 18 months in prison, respectively — petition the United States Supreme Court to will have to be re-sentenced. review this case.”

The U.S. Attorney’s Office in New Jersey, With the help of a third conspirator, David which prosecuted the case, said in a statement Wildstein, who pleaded guilty and testified that it’s “reviewing the opinion and is against them, Baroni and Kelly helped grateful for the court’s consideration of all of orchestrate a scheme to close Fort Lee’s the issues raised in the appeal.” access lanes to the busiest bridge in the country, tying up traffic for hours in the Lawyers representing Baroni and Kelly said densely-populated Bergen County town. they are evaluating further appeals. Kelly sent Wildstein the infamous email “We are gratified that the Court of Appeals stating that it was “time for some traffic concluded that Bill Baroni did not violate

233 problems in Fort Lee,” sparking the lane to plow the streets of a ward that supported closures. her before getting to a ward that supported her opponent,” Judge Anthony Scirica wrote Former Gov. Chris Christie was never for the panel, which also included Judges charged in the case, but testimony painted an Thomas Ambro and Eugene Siler, Jr. unflattering picture of his administration and damaged his presidential aspirations. Some The argument didn’t get far with the appeals testimony during the trial also contradicted court. Christie’s previous statements about when he was notified of the lane closures. “To execute their scheme, they conscripted fourteen Port Authority employees to do The federal government’s case relied largely sham work in pursuit of no legitimate Port on a law barring officials from misapplying Authority aim. That Defendants were property from an organization receiving politically motivated does not remove their federal funds — in this case the Port intentional conduct from the ambit of the Authority of New York and New Jersey, federal criminal law,” Scirica wrote. “We where Baroni was deputy executive director, hold that, at a minimum, the Government New Jersey’s top staffer. offered a valid theory that Defendants fraudulently obtained, knowingly converted, Kelly was deputy chief of staff in charge of or intentionally misapplied the labor of Port the Christie administration’s Office of Authority employees, and that it offered Intergovernmental Affairs — an organization evidence sufficient to sustain Defendants’ that, according to numerous witness’ convictions.” testimony and other information that came out during the Bridgegate trial — in many But the panel did agree with Baroni and Kelly ways worked as a publicly-funded arm of that they should not have been convicted for Christie’s reelection campaign. violating drivers’ civil rights by denying them intrastate travel between New York and Kelly and Baroni argued that prosecuting New Jersey. them using that federal law would criminalize normal political conduct. “Simply put, although four circuits (including our own) have found some form of “Offering an analogy, Kelly contends a constitutional right to intrastate travel, there Defendants’ conduct is ‘materially is hardly a ‘robust consensus’ that the right indistinguishable’ from that of a mayor who, exists, let alone clarity as to its contours,” after a heavy snowfall, directs city employees Scirica wrote.

234 Ramos v. Louisiana

Ruling Below: State v. Ramos, 231 So. 3d 44 (La. Ct. App. 2017).

Overview: Ramos was convicted and sentenced to life imprisonment on a 10 to 12 jury verdict. He appealed his conviction in which he argued that his conviction by a non-unanimous jury violated his federal constitutional rights.

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of an unanimous verdict.

STATE OF LOUISIANA, Plaintiff-Appellee

v.

EVANGELISTO RAMOS, Defendant- Appellant

Court of Appeal, Fourth Circuit, State of Louisiana

Decided on November 2, 2017

[Excerpt; some citations and footnotes omitted]

MCKAY, Chief Judge:

The defendant, Evangelisto Ramon, appeals On June 20, 2016, the trial court once again his conviction and sentence. Finding no error, denied the defense motion to exclude the we affirm his conviction and sentence. statement. Trial was continued to June 21, 2016. STATEMENT OF CASE The defendant's case proceeded to trial by On May 21, 2015, the defendant was indicted jury on June 21, 2016 and concluded on June on one count of second-degree murder. The 22, 2016. The defendant was found guilty of defendant appeared for arraignment on June second-degree murder by a ten of twelve-jury 1, 2015 and entered a plea of not guilty. On verdict. July 16, 2015, the trial court denied the defendant's motion to suppress the statement. The defendant filed a motion for new trial and a motion for post-verdict judgment of On March 20, 2016, the trial court granted the acquittal on July 6, 2016. On July 12, 2016, defendant's motion for a speedy trial. A pre- the defendant appeared for sentencing and his trial conference was conducted by the trial motions for new trial and for post-verdict court on June 10, 2016. Trial was set for June judgment of acquittal were denied. The 20, 2016. defendant waived sentencing delays and was

235 sentenced to life imprisonment at the was sick. About thirty-minutes later, he saw Louisiana Department of Corrections at hard his aunt walking around the corner. He saw labor without benefit of parole, probation or two Spanish men he had never seen before suspension of sentence. The defendant filed a standing on the corner near his aunt. One of motion for appeal on July 12, 2016. the men rode off on a bicycle, and the other remained on the corner. Jerome flashed his STATEMENT OF FACT truck's lights to let his aunt know he was present and waved at her. She waved On November 26, 2014, the dead body of a back. His aunt then went back to talk to the woman, later identified as Trinece Fedison Spanish man and then went inside the house (the "victim"), was found inside a trash can in on the corner with the man. Jerome remained a wooded area behind 3308 Danneel Street in outside his cousin's house for approximately New Orleans. 30-40 minutes and then left. During that time, Robert Heim ("Mr. Heim"), a code he never saw his aunt come out of the corner enforcement officer for the City of New house. Orleans, testified that on the morning of On Thanksgiving morning, the morning his November 26, 2014 between 9:00 and 10:00 aunt's body was found, Jerome looked down a.m., he was inspecting blighted property in the street and saw a man exiting the Spanish the wooded area behind the house located at man's house. Knowing that the Spanish man 3308 Danneel Street. Mr. Heim noticed trash was the last person he saw his aunt with, and various discarded items in the overgrown Jerome approached the man in the street and brush area. The woman who resided nearby confronted him. Jerome told the man, "I called his attention to a trash can in the rear know what you did. You gonna [sic] feel me of the alley way and asked him to pull it out partner, for real." The man stood silent for ten to the street. The woman said the trash can minutes "like a damn ghost." Jerome did not belong to her. When Mr. Heim identified the defendant at trial as the Spanish attempted to move the trash can, he found it man he had last seen with his aunt. was very heavy. Because he was unable to move the trash can, Mr. Heim lifted the lid New Orleans Police Homicide Detective and discovered the dead body of a woman, Nicholas Williams ("Detective Williams") later identified as the victim. He immediately testified he assisted in the investigation of the called 911. Mr. Heim said it was apparent the Trinece Fedison murder. He grew up with victim was a woman and was deceased. Trinece and her family. Detective Williams learned from the victim's family that Jerome Jerome Fedison ("Jerome"), the victim's had information on a possible suspect. He nephew, testified that on the afternoon before subsequently took a recorded statement from his aunt's body was discovered, he stopped at Jerome, which he turned over to Detective his cousin's house at about 3:30 p.m. While Bruce Brueggeman ("Detective waiting for a friend, Jerome called his aunt Brueggeman"). In his statement, Jerome (the victim) on the phone. She told him she

236 furnished a description and address of the arranged an interview. When questioned suspected perpetrator. relating to the defendant's previous employment, Mr. Scheurmann stated the Darryl Schuermann testified he was the defendant had been a butcher in New York. operations manager for Romeo Pappa Boats, where the defendant worked as an AB NOPD Homicide Detective Brueggeman seaman. Romeo Pappa Boats' office was testified he was the lead detective assigned to located in Houma, and there was a mobile investigate the victim's murder. Upon home located on the property. The trailer was viewing the crime scene, Detective used to lodge outgoing crewmen from out of Brueggeman suspected that a sexual assault town for the night before a crew change so had occurred, so he requested that a sexual that the crewmen did not have to travel in the assault kit be completed. He learned that the early morning hours. A retired Coast Guard trash can in which the body was found officer named Gene lived on the property and belonged to a church located across the street looked after the property. Gene called Mr. from the crime scene. He surmised that the Scheurmann over the weekend and informed murder probably happened within the him that the defendant had been staying in the immediate area because the trash would have trailer for several days. been too heavy to move with the body of a large woman inside. Detective Brueggeman When Mr. Scheurmann arrived at work on interviewed a neighbor who lived in an the Monday morning following apartment complex next to the wooded lot, Thanksgiving, the defendant came into his who told him that while she was in bed in the office and said he needed to talk to him. The early morning hours, she heard a garbage can defendant told Mr. Scheurmann that he was being rolled across the street and over a curb. sexually involved with a prostitute, the victim, and when she was leaving his house, Detective Brueggeman interviewed the he heard a commotion. The defendant told victim's boyfriend, who stated that he was Mr. Scheurmann he saw a black SUV with with several family members at the time of two black men, who were harassing her. the murder. Because the alibi was confirmed by his family members, the victim's The defendant stated that after the victim's boyfriend was eliminated as a suspect. body was discovered, one of her family Detective Williams furnished Detective members approached him on the street and Brueggeman with the recorded statement he threatened to kill him, saying; "I know you had taken from the victim's nephew, Jerome. did it. I'm going to kill you." The defendant explained that he had been staying in the Detective Brueggeman received a phone call trailer that weekend because he feared for his from Darryl Schuermann. The detective life. Mr. Scheurmann advised the defendant immediately drove to Houma to meet with to talk to the police. The defendant indicated Mr. Scheurmann and the defendant. At that he was willing to talk to the police. Mr. time, Detective Brueggeman did not consider Scheurmann contacted the lead detective and the defendant a suspect in the victim's

237 murder. The defendant told the detective that that the defendant's account of the victim's he had had sex with the victim just prior to encounter with the men in the black vehicle her murder. Detective Brueggeman obtained differed from the account he had given to a buccal swab from the defendant. Darryl Schuermann in which he asserted the men were harassing the victim. The When Detective Brueggeman received the defendant was unable to describe the men in results of the DNA testing, it revealed a the black car. match between the defendant's DNA and the DNA found in the victim's vagina. The Suggesting that the defendant had been defendant's DNA was also found on the profiled based on his ethnicity, Detective handles of the trash can in which the victim's Brueggeman was asked on cross examination body had been found. The DNA reports were why someone had said, "[I]t was possibly later introduced into evidence. Hispanic due to a knife being involved?" Detective Brueggeman replied: "Some of the After receiving the DNA results, Detective people we spoke to like Jerome, some of the Brueggeman obtained a warrant for the people in the black community, they feel as if defendant's arrest, and the defendant was somebody is a victim of [a] stab wound apprehended. Detective Brueggeman, after chances are it's probably from a Mexican. providing the defendant with his rights in Those aren't my words but they think its accordance with Miranda, obtained a second Mexican or Hispanic because they like to use statement from the defendant. Detective knives." Brueggeman informed the defendant there was some physical evidence. In response to Detective Brueggeman stated he learned learning the police had physical evidence, the during his investigation that the victim had a defendant immediately told Detective drug problem; however, only the defendant Brueggeman about his prints being on a stated she was a prostitute. Detective garbage can lid. The defendant stated that he Brueggeman reviewed the victim's criminal had touched the garbage can lid when he history and found nothing to lead him to placed a bag of garbage in the church garbage believe the victim was a prostitute. There can immediately after having sex with the were no arrests for prostitution and nothing victim. After further questioning, the to suggest the victim was a prostitute. defendant said the church was located across the street from his house. The defendant told Dr. Erin O'Sullivan ("Dr. O'Sullivan"), a the detective that the last time he saw the forensic pathologist for the Orleans Parish victim was when she was leaving his Coroner's Office, performed the autopsy on residence. The defendant stated, as the victim the victim's body on November 28, 2014. Dr. was leaving, a black vehicle, possibly a O'Sullivan stated the death was classified as Buick, pulled up, and the men inside called a homicide. Dr. O'Sullivan determined that her name. The victim appeared to know the Trinece had sustained six stab wounds in the men, immediately got into the vehicle, and abdomen and lower right side of the back. the vehicle drove off. The detective noticed Additionally, the victim sustained an "in

238 size" [sic] wound on the interior of her neck, was also concluded that there were two cutting into her vertebrae. In other words, in contributors to the contact DNA found on the colloquial terms, her throat was slit. The right handle of the garbage can. The victim also had a contusion on her back and defendant could not be excluded as a minor her right eye, consistent with a struggle. contributor, while the victim could not be excluded as a major contributor. Assuming Dr. O'Sullivan performed a sexual activity one contributor, the probability of finding the test on the victim at the request of the police. same profile from an unrelated random Dr. O'Sullivan determined that the cause of individual other than the defendant would be the victim's death were the stab wounds to the one in 18.4 quadrillion, which is two to three abdomen and neck. Based on the rigor state times the earth's population. Testing of the of the victim, Dr. O'Sullivan determined the victim's fingernail clippings revealed the time of death to be between the night of DNA of the victim's own blood. Further November 25, 2014 and the morning of testing revealed the DNA mixture of at least November 26, 2014. Dr. O'Sullivan took two male individuals, but no profiles could be fingernail clippings, which she preserved for determined due to the low-level nature of the evidence. Dr. O'Sullivan stated the victim data. had lost a lot of blood internally. Dr. O'Sullivan explained the abdominal wounds ERRORS PATENT would not cause massive external bleeding and the wound to the neck may have had A review for errors patent on the face of the more external bleeding. Dr. O'Sullivan record reveals none. explained the neck wound may not have had much external bleeding if it was the last wound inflicted. ASSIGNMENT OF ERROR NUMBER 1

Stacey Williams ("Ms. Williams"), a forensic In the first assignment of error, the defendant DNA analyst for the State Police Crime Lab, (pro se) and counsel contend the evidence was accepted as an expert in the field of was insufficient to support his conviction. forensic DNA analysis. Ms. Williams The defendant asserts the evidence presented performed the DNA analysis with respect to at trial was circumstantial and failed to samples related to the victim murder exclude every reasonable hypothesis of investigation. The testing revealed that the innocence. defendant's DNA was found in the victim's The defendant was found guilty of second- vagina and also on the handles of the trash degree murder, a violation of La. R.S. can in which her body was found. There were 14:30.1, which provides in relevant part: "A. three contributors of contact (touch) DNA on Second degree murder is the killing of a the left handle of the garbage can. The human being: (1) When the offender has a defendant could not be excluded as the major specific intent to kill or to inflict great bodily contributor of the DNA, and the victim could harm...." not be excluded as the minor contributor. It

239 The standard for review of a claim of requires that 'all evidence, both direct and insufficiency of the evidence was laid out by circumstantial, must be sufficient to satisfy a the Supreme Court in Jackson v. Virginia: rational juror that the defendant is guilty beyond a reasonable doubt.'" ...the relevant question is whether, after viewing the evidence in the light most In the case sub judice, some of the evidence favorable to the prosecution, any rational may be susceptible of innocent explanation. trier of fact could have found the essential However, “under the Jackson standard, if elements of the crime beyond a reasonable rational triers of fact could disagree as to the doubt. This familiar standard gives full play interpretation of evidence, the rational fact to the responsibility of the trier of fact to finder's view of all of the evidence most resolve conflicts in the testimony, to weigh favorable to the prosecution must be the evidence, and to draw reasonable adopted." Therefore, viewing the evidence in inferences from basic facts to ultimate the light most favorable to the State, a facts. Once a defendant has been found guilty rational juror could have found that the State of the crime charged, the factfinder's role as proved its case beyond a reasonable doubt. weigher of the evidence is preserved through a legal conclusion that upon judicial The defendant asserts that the evidence review all of the evidence is to be considered presented at trial was insufficient to prove his in the light most favorable to the prosecution. identity as the murderer of the victim. A review of the evidence and testimony "Under the Jackson standard, the rational presented at trial reflects Jerome saw the credibility determinations of the trier of fact victim at approximately 4 p.m. the day before are not to be second guessed by a reviewing her body was discovered. Jerome had noticed court." Further, "a factfinder's credibility two men on the corner he had never seen determination is entitled to great weight and before. Jerome thought the two men were should not be disturbed unless it is contrary Hispanic. Jerome opined the two men were to the evidence." But, where there is no direct behaving suspiciously and were selling drugs evidence presented proving one or more of in front of the church. As Jerome saw the the elements of the offense, La. R.S. victim coming around the corner, he flashed 15:438 governs circumstantial evidence and his headlights and waved to her. One of the provides "assuming every fact to be proved men left on a bicycle. The victim waved to that the evidence tends to prove, in order to Jerome but turned around and went back to convict, it must exclude every reasonable the man on to the corner. The victim and the hypothesis of innocence." "Stated differently, man spoke briefly and then went into the the reviewer as a matter of law, can affirm the corner house. Jerome waited outside the conviction only if the reasonable hypothesis house for thirty-five to forty minutes but is the one favorable to the State and there is never saw the victim exit the house. no extant reasonable hypothesis of Jerome identified the defendant as the last innocence." "This test is not separate from person with whom the victim was seen. the Jackson standard; rather it simply

240 DNA testing revealed a match between the ASSIGNMENT OF ERROR NUMBER 2 defendant's DNA and the DNA found in the victim's vagina. The defendant's DNA was The defendant and counsel contend the State also found on the handles of the trash can in made improper comments during its opening which the victim's body had been found. Ms. statement and closing arguments asserting Williams believed the high volume of the that he raped and/or sexually assaulted the defendant's DNA found on the handle of the victim. The defendant asserts the comments trash can was due to some form of the influenced the jury and contributed to the defendant's sweat or other substance on the verdict because it undermined his defense handle. that his sexual contact with the victim was consensual. Testimony was also given at trial that the defendant left the area following the murder. La. C.Cr.P. art. 774 relates to the scope of In addition, the defendant gave conflicting argument and provides as follows: stories regarding what transpired when the The argument shall be confined to evidence victim left his residence. The defendant could admitted, to the lack of evidence, to not identify the type of vehicle or give a conclusions of fact that the state or defendant description of the men in the vehicle. An may draw therefrom, and to the law unopened condom was found with the victim applicable to the case. The argument shall not and the defendant's seminal fluid was found appeal to prejudice. in her vagina. Detective Brueggeman testified the condition of the victim when she The State's rebuttal shall be confined to was found led him to believe a sexual assault answering the argument of the defendant. had occurred. Pictures of the crime scene, including the body of the victim in the The Louisiana Supreme Court in State v. condition in which she was found, were Reed summarized the law relevant to alleged introduced into evidence. The defendant told improper remarks during argument as Detective Brueggeman that he lifted the lid of follows: the trash can to deposit trash, however, the defendant was the major contributor to the ... Louisiana jurisprudence on prosecutorial DNA found on the handle of the trash can misconduct allows prosecutors considerable suggesting he moved the trash can rather than latitude in choosing closing argument simply lift the lid to deposit garbage into it. tactics. The trial judge has wide discretion in controlling the scope of closing argument. The evidence presented by the State Even if the prosecutor exceeds these bounds, including the testimony of the witnesses a reviewing court will not reverse a provided sufficient evidence, when viewed in conviction due to an improper remark during the light most favorable to the prosecution, to closing argument unless the court is support the jury's verdict of guilty. This claim thoroughly convinced the argument is without merit. influenced the jury and contributed to the verdict, "as much credit should be accorded

241 the good sense and fair mindedness of jurors contact was not consensual and was a sexual who have seen the evidence and heard the assault. The trial court cautioned the State to arguments, and have been instructed avoid the use of the word "rape" when repeatedly by the trial judge that arguments referring to the sexual assault. of counsel are not evidence." This Court will not reverse a conviction for The defendant asserts he was prejudiced by alleged improper opening, closing, or rebuttal the following statement made by the arguments unless it is "thoroughly prosecutor during opening statements: convinced" that the argument influenced the jury and contributed to the verdict. The jury When they take her out of the trash can you in the case sub judice was presented with are going to learn that immediately the initial evidence consisting of photographs of the officers say she was raped. She was half victim as she was found in the trash can. The naked. Her underwear shoved down to her victim's clothing was partially removed, the knees. Her pants shoved down beside her defendant's seminal fluid was found in her ankles, a bra shoved up over her breasts, she vagina, and she had been stabbed multiple had two socks on, no shoes and no shirt. And times. From this evidence, the jury the initial detectives know right away that reasonably could have found the victim had this woman had been raped and murdered. been sexually assaulted prior to her murder. The trial court did not abuse its discretion in The defendant contends he was prejudiced by determining that the use of the term "rape" or the State's reference to sexual assault or rape "sexual assault" by the State in its opening, during opening, closing, and rebuttal closing, or rebuttal arguments did not arguments. However, the defendant admitted influence the jury or contribute to the verdict. sexual contact with the victim during his This claim is without merit. initial conversation with Detective Brueggeman but asserted it was consensual. PRO SE ASSIGNMENT OF ERROR NUMBER 3 The trial court informed the jury, prior to opening statements, that opening statements The defendant asserts his conviction was were not evidence. Following the defendant's based solely on racial profiling. The objection to the State's assertion that the defendant asserts that because the victim's victim was raped prior to her murder, the trial nephew, Jerome, stated during testimony that court, outside the presence of the jury, heard when he found out his aunt was stabbed, he argument from the State as well as the thought the crime had been committed by a defense. The State contended that the sexual "Spanish guy." However, Jerome stated: "A assault of the victim was part of a continuing Spanish guy had to do it. If [sic] not really act which resulted in her murder. The trial that, I really went straight to the last person I court ruled that while the defense was entitled saw her with...." to assert the sexual contact was consensual, the State was entitled to argue that the sexual

242 Detective Brueggeman, the lead detective In his final assignment of error, the defendant investigating the murder, testified that the contends the trial court erred in denying his defendant was not considered a suspect in the motion to require a unanimous jury verdict. murder at their first meeting. Detective The defendant contends that Louisiana's Brueggeman stated the fact that the statutory scheme which permits non- defendant's DNA was found on the trash can unanimous jury verdicts in non-capital felony handles in which the victim was found lead cases should be declared unconstitutional. In him to suspect the defendant. Detective particular, he claims that La. Const. Art. I, Brueggeman confirmed that some of the Sec. 17 and La. C.Cr.P. art. 782 violate people he spoke to during the investigation of the equal protection Clause. the murder suspected it was committed by a Spanish individual because they believed La. Const. Art. I, Section 17(A) provides when someone was stabbed it was probably that a case "in which the punishment is by a Mexican. Detective Brueggeman stated necessarily confinement at hard labor shall be those were not his words but were the tried before a jury of twelve persons, ten of suspicions of some members of the black whom must concur to render a verdict." community. Detective Brueggeman detailed Additionally, La. C.Cr.P. art. the evidence which lead him to suspect the 782(A) provides in part that "[c]ases in which defendant had committed the murder. punishment is necessarily confinement at Detective Brueggeman concluded the murder hard labor shall be tried by a jury composed was committed by someone who lived nearby of twelve jurors, ten of whom must concur to because of where the trash can was hidden. It render a verdict." was also determined that the trash can would In Apodaca v. Oregon, the United States have been difficult to move due to the weight Supreme Court stated: of the victim's body inside it. In addition, it was determined that the trash can was [T]he purpose of trial by jury is to prevent originally stored next to a church which was oppression by the Government by providing across the street from the defendant's a 'safeguard against the corrupt or residence. overzealous prosecutor and against the complaint, biased, or eccentric judge.' 'Given A review of the record demonstrates that this purpose, the essential feature of a jury there was substantial evidence linking the obviously lies in the interposition between defendant to the murder. The defendant has the accused and his accuser of the not established that he was investigated based commonsense judgment of a group of laymen on racial profiling as he asserts. This claim is ...' A requirement of unanimity, however, without merit. does not materially contribute to the exercise PRO SE ASSIGNMENT OF ERROR of this commonsense judgment. As we said NUMBER 4 in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of

243 the community who have the duty and the that Article 782 violated the Fifth, Sixth, opportunity to deliberate, free from outside and Fourteenth Amendments. With respect to attempts at intimidation, on the question of a that ruling, it should go without saying that a defendant's guilt. In terms of this function we trial judge is not at liberty to ignore the perceive no difference between juries controlling jurisprudence of superior courts. required to act unanimously and those permitted to convict or acquit by votes of 10 This Court cited and relied to two or 11 to one. Requiring unanimity on Bertrand in State v. Hickman, to reject the would obviously produce hung juries in some argument that the trial court had erred in situations where non-unanimous juries will denying the defendant's motion to declare La. convict or acquit. But in either case, the C.Cr.P. art. 782(A) unconstitutional as interest of the defendant in having the violative of the Fifth, Sixth and Fourteenth judgment of his peers interposed between Amendments to the U.S. Constitution. himself and the officers of the State who As stated by the Louisiana Supreme Court prosecute and judge him is equally well in Bertrand, under current jurisprudence served. from the U.S. Supreme Court, non- In State v. Bertrand, the trial court found unanimous twelve-person jury verdicts are that La. C.Cr.P. art. 782 (A) violated constitutional, and La. C.Cr.P. art. 782(A) is the Fifth, Sixth and Fourteenth Amendments constitutional. Accordingly, there is no merit to the United States Constitution, relative to in this assignment of error. the number of jurors needed to concur to CONCLUSION render a verdict in cases in which punishment is necessarily confinement at hard labor, the For the above stated reasons, we affirm same issue raised by the defendant in the defendant's conviction and sentence. instant case. On direct appeal by the State, the Louisiana Supreme Court reversed, stating in AFFIRMED its conclusion:

Due to this Court's prior determinations that Article 782 withstands constitutional scrutiny, and because we are not presumptuous enough to suppose, upon mere speculation, that the United States Supreme Court's still valid determination that non- unanimous 12 person jury verdicts are constitutional may someday be overturned, we find that the trial court erred in ruling

244 “Supreme Court to Examine Whether Unanimous Juries are Required for Criminal Convictions”

The Washington Post

Robert Barnes

March 18, 2019

The Supreme Court on Monday accepted two The Louisiana case was brought by important criminal justice cases for next term Evangelisto Ramos, convicted of second- but turned down a Georgia death-row inmate degree murder in 2016 on a 10-to-2 jury vote who said a juror in his case used racist and sentenced to life in prison. His attorneys language and a bed-and-breakfast owner who said Louisiana’s law was a Jim Crow attempt declined to offer a room to a lesbian couple. to diminish the impact of African Americans serving on juries. As they began shaping their docket for the term that starts in October, the justices The state’s voters in 2018 passed a accepted a case from Louisiana that asks referendum requiring unanimous verdicts in whether the Constitution requires unanimous felony trials. But it was prospective to 2019 jury verdicts for serious criminal convictions. and would not affect Ramos.

Louisiana and Oregon do not require Louisiana opposed Ramos’s request. unanimity for major crimes, and attorneys “Thousands of final convictions in these two representing defendants convicted in those states could be upset if such a new rule were states for years have urged the Supreme later declared retroactive,” wrote the state’s Court to revisit the question. attorney general, Jeff Landry (R).

In rulings in 1972, the court said the The case is Ramos v. Louisiana. Constitution’s Sixth Amendment, which recognizes the right to a “speedy and public In Kahler v. Kansas, attorneys for James trial, by an impartial jury,” does not mean Kraig Kahler ask the court to decide whether states must require a unanimous jury. At the a state may abolish the insanity defense. same time, the court has required unanimity Kahler was convicted and sentenced to death in federal trials. for killing his wife, Karen, his daughters Lauren and Emily, and Karen’s grandmother The question is similar to one the court in 2009. faced earlier this term, when it ruled the Eighth Amendment ban on excessive fines Kahler’s attorneys argued he was so mentally applies to state and local governments, not ill he did not understand his actions. just the federal government.

245 But, “in Kansas, along with four other states, are shielding from judicial review,” it is not a defense to criminal liability that Sotomayor wrote. mental illness prevented the defendant from knowing his actions were wrong,” The court also turned away without comment Washington lawyer Jeffrey T. Green told the a petition from the owner of a Hawaii bed- Supreme Court. and-breakfast who turned away a lesbian couple. Phyllis Young said her Christian “So long as he knowingly killed a human beliefs required her to refuse to rent a room being — even if he did it because he believed in 2007 to a same-sex couple. the devil told him to, or because a delusion convinced him that his victim was trying to A state court said Hawaii’s public- kill him, or because he lacked the ability to accommodation law prohibits discrimination control his actions — he is guilty,” Green on the basis of sexual orientation. said. The Supreme Court is still considering a Green said the other states are Alaska, Idaho, petition from an Oregon bakery that refused Montana and Utah. to make a wedding cake for a same-sex couple. The court also turned down a petition from Keith Tharpe, who is on Georgia’s death row. Last term, the court ruled for a Colorado Tharpe was convicted in 1991 of killing his baker who made a similar rejection. But the sister-in-law and raping his estranged wife. court found alternative grounds for that ruling and did not address the question of Seven years later, he discovered that a juror whether business owners can claim religious in the case harbored racist sentiments. The exemptions from public-accommodations juror, Barney Gattie, believed there are “two laws. types of black people: 1. Black folks and 2. N-----s,” according to an affidavit.

The court did not provide an explanation for turning down Tharpe’s petition. But Justice Sonia Sotomayor wrote separately to say his plea turned not on the juror’s remarks but rather on procedural grounds that it appeared a lower court got right.

“As this may be the end of the road for Tharpe’s juror-bias claim, however, we should not look away from the magnitude of the potential injustice that procedural barriers

246 “Jury Unanimity Bid Gets High Court Look”

Bloomberg Law

Jordan S. Rubin

March 18, 2019

Unanimous jury verdicts in criminal cases could soon become the law of the land after “We are hopeful the Court took the case to the U.S. Supreme Court March 18 granted restore the full protections of the Constitution review on the issue for next term. to the State of Louisiana,” said Ramos’ attorney, G. Ben Cohen. If the justices decide that the federal Sixth Amendment unanimity right applies in state Ramos was convicted of murder at a court, it will be the latest such instance of Louisiana state court trial in 2016. Ten of his “incorporating” federal provisions to the 12 jurors voted for guilt. states, an aspect of constitutional law brought to light recently this term with the high The case is Ramos v. Louisiana, U.S., 18- court’s closely watched decision in Timbs v. 5924, review granted 3/18/19. Indiana.

Eighth Amendment excessive fines protections apply to the states, Justice Ruth Bader Ginsburg wrote for the court in Timbs, while noting in her opinion that the right to unanimous jury verdicts in criminal cases is still an outlier that only applies federally.

Nearly all courtrooms around the country already require unanimous convictions, except for Oregon and, until recently, Louisiana, which voted last November to outlaw the practice going forward.

But the Louisiana ballot measure, which doesn’t apply retroactively, won’t save Evangelisto Ramos, whose appeal the Supreme Court just granted.

247 “Are Unanimous Juries Required in State Criminal Cases? SCOTUS Will Consider Overruling Precedent”

ABA Journal

Debra Cassens Weiss

March 18, 2019

The U.S. Supreme Court on Monday agreed federal criminal trials, but not in state to consider whether to overrule a 1972 case criminal trials. Ramos is asking the court to that allowed nonunanimous verdicts in state rule that the same Sixth Amendment right criminal trials. applies to the states through the incorporation doctrine. The court agreed to decide whether the Sixth Amendment requires unanimity in the case of When Ramos was convicted in 2016, only Louisiana inmate Evangelisto Ramos, who Oregon and Louisiana allowed was sentenced to life in prison after being nonunanimous verdicts in criminal trials. The convicted of second-degree murder in a 10-2 states still required unanimity in cases of jury vote. first-degree murder, the Associated Press reports. The case was based on circumstantial evidence, according to Ramos’ cert petition. Louisiana voters amended the state He acknowledged having sex with the victim constitution to bar nonunanimous verdicts in the night before her slaying, but said she was criminal cases four months ago, according to alive when he left her home. Ramos said she the Associated Press. The change took effect had gotten into a car with two other men as in January, but it does not apply retroactively. he left. The ABA House of Delegates adopted a Ramos had first raised the jury issue in a resolution in August 2018 urging states to supplemental brief he filed himself in require unanimity. In 2011, the ABA filed an Louisiana state court. amicus brief urging the Supreme Court to reconsider the 1972 Apodaca ruling. The U.S. Supreme Court ruled in the 1972 decision, Apodaca v. Oregon, that the Sixth The new case is Ramos v. Louisiana. Amendment requires unanimous verdicts in

248 Mathena v. Malvo

Ruling Below: Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018).

Overview: Malvo was sentenced to four terms of life imprisonment without parole. SCOTUS issued a series of decisions holding that juvenile defendants could not be sentenced to life imprisonment without parole. SCOTUS held that the new sentencing rules were retroactive. Malvo filed applications for writs of habeas corpus relief.

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts – that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

Lee Boyd MALVO., Plaintiff-Appellee

v.

Randall MATHENA, Chief Warden, Red Onion State Prison, Defendant- Appellant

United States Court of Appeals, Fourth Circuit

Decided on June 21, 2018

[Excerpt; some citations and footnotes omitted]

NIEMEYER, Circuit Judge:

In Virginia in 2004, a defendant convicted of Thereafter, Malvo, again seeking to avoid the capital murder, who was at least 16 years old death penalty, pleaded guilty in another at the time of his crime, would be punished Virginia jurisdiction to one count of capital by either death or life imprisonment without murder and one count of attempted capital the possibility of parole, unless the judge murder — both of which he also committed suspended his sentence. After a Virginia jury when 17 years old — and received two convicted Lee Boyd Malvo of two counts of additional terms of life imprisonment without capital murder based on homicides that he parole. committed in 2002 when he was 17 years old, it declined to recommend the death penalty, After Malvo was sentenced in those and he was instead sentenced in 2004 to cases, the Supreme Court issued a series of two terms of life imprisonment without decisions relating to the sentencing of parole, in accordance with Virginia law. defendants who committed serious crimes when under the age of 18. It held that such

249 defendants cannot be sentenced to death; that Snipers" — murdered 12 individuals, they cannot be sentenced to life inflicted grievous injuries on 6 others, and imprisonment without parole unless they terrorized the entire Washington, D.C. committed a homicide offense that reflected metropolitan area, instilling an all-consuming their permanent incorrigibility; and that these fear into the community. rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences The violence began on September 5, 2002, that were legal when imposed must be when Malvo — who was at the time 17 years vacated if they were imposed in violation of old — ran up to a man's car in Clinton, the Court's new rules. Maryland, shot him six times with a .22 caliber handgun, and stole his laptop and In these habeas cases filed under 28 U.S.C. § $3,500 in cash. Ten days later, again in 2254, we conclude that even though Clinton, Maryland, Malvo approached a man Malvo's life-without-parole sentences were who was in the process of closing a liquor fully legal when imposed, they must now be store and shot him in the abdomen at close vacated because the retroactive constitutional range with the handgun. rules for sentencing juveniles adopted subsequent to Malvo's sentencings were not Muhammad and Malvo then went south for a satisfied during his sentencings. short period. On September 21, Muhammad Accordingly, we affirm the district court's used a high-powered, long-range Bushmaster order vacating Malvo's four terms of life assault rifle to shoot two women who had just imprisonment without parole and remanding closed a liquor store in Montgomery, for resentencing to determine (1) whether Alabama. Malvo was seen approaching the Malvo qualifies as one of the rare juvenile women as the shots were being fired and then offenders who may, consistent with rummaging through their purses. One of the the Eighth Amendment, be sentenced to life women died from her wounds. Two days without the possibility of parole because his after that, a woman in Baton Rouge, "crimes reflect permanent incorrigibility" or Louisiana, was fatally shot in the head with a (2) whether those crimes instead "reflect the Bushmaster rifle after closing the store where transient immaturity of youth," in which case she worked. Again, Malvo was seen fleeing he must receive a sentence short of life the scene with her purse. imprisonment without the possibility of Shortly thereafter, Muhammad and Malvo parole. returned to the Washington, D.C. area and,

from October 2 until their capture on October I 24, embarked on a series of indiscriminate

sniper shootings with the Bushmaster rifle A that left 10 more people dead, 3 seriously Over the course of almost seven weeks in the wounded, and the entire region "gripped by a fall of 2002, Lee Malvo and John paroxysm of fear," convinced that "every Muhammad — better known as the "D.C. man, woman, and child was a likely

250 target." On October 2, shortly after 6 p.m., an effort to extort ten million dollars from the they shot and killed a man while he was in a 'media and the government'" and that he had grocery store parking lot in Montgomery been the triggerman in 10 of the shootings. County, Maryland. The next day, they Later, however, when testifying as a witness murdered five people — four in the morning at Muhammed's first-degree murder trial in at different locations in Montgomery County, Montgomery County, Maryland, Malvo and a fifth that evening in Washington, stated that "he had been the actual shooter of D.C. The following day, they shot and [the 13-year old boy] in Prince George's seriously wounded a woman in Spotsylvania County and of [the bus driver] in County, Virginia, while she was loading Montgomery County" and that "Muhammad goods into her car. On October 7, they shot had been the actual triggerman on all other and gravely injured a 13-year-old boy in occasions." Prince George's County, Maryland, while he was on his way to school; two days later, they In January 2003, a grand jury in Fairfax shot and killed a man at a gas station in Prince County, Virginia, returned an indictment William County, Virginia; two days after charging Malvo as an adult with (1) capital that, they shot and killed another man at a gas murder in the commission of an act of station in Spotsylvania County, Virginia; and terrorism, in violation of Va. Code Ann. § three days after that, they shot and killed a 18.2-31(13); (2) capital murder for killing woman outside a Home Depot store in more than one person within a three-year Fairfax County, Virginia. On October 19, period, in violation of § 18.2-31(8); and (3) they shot and seriously wounded a man while using a firearm in the commission of a felony, he was leaving a restaurant in Ashland, in violation of § 18.2-53.1. The prosecutor in Virginia, and on October 22, they shot and that case sought the death penalty. Malvo killed a bus driver in Montgomery County, pleaded not guilty to the charges, and, to Maryland, the last of their sniper shootings. ensure an impartial jury pool, the case was transferred to the Circuit Court for the City of Malvo and Muhammad were apprehended in Chesapeake, Virginia. the early hours of October 24 at a rest area in Frederick County, Maryland, while sleeping At the trial, which took place during in a blue Chevrolet Caprice. A loaded .223 November and December 2003, Malvo caliber Bushmaster rifle was found in the car, acknowledged his involvement in the killings and a hole had been "cut into the lid of the but asserted an insanity defense based on the trunk, just above the license plate, through theory that he had been indoctrinated by which a rifle barrel could be projected." Muhammad during his adolescence and was Modifications had also been made to the car's operating under Muhammad's control. To rear seat to allow access to the trunk area that end, defense counsel presented from the car's passenger compartment. After testimony from more than 40 witnesses who his arrest, Malvo told authorities in Virginia collectively described how Malvo was that "he and his 'father,' John Allen physically abused and largely abandoned as a Muhammad, had acted as a sniper team . . . in child growing up in Jamaica and Antigua;

251 how, when he was 15 years old, he befriended punishment at imprisonment for life" for each John Muhammad, an American veteran who of his two capital murder convictions. had taken his three children to live in Antigua without their mother's knowledge; how After the jury was excused and a presentence Muhammad became a surrogate father for report was prepared, the court conducted a Malvo and brought him illegally to the final sentencing hearing on March 10, 2004, United States in May 2001; how Malvo sentencing Malvo to two terms of life briefly reunited with his mother in the United imprisonment, as required by Virginia States but then moved across the country in law. Under Virginia law, a defendant October 2001 to rejoin Muhammad, who had sentenced to life imprisonment for a capital recently lost custody of his children; and how murder offense committed on or after Muhammad then intensively trained Malvo January 1, 1995, is ineligible for any form of in military tactics for nearly a year, telling parole. The court also sentenced Malvo to Malvo that he had a plan to get his children three years' imprisonment for the firearm back and force America to reckon with its conviction. social injustices. The jury rejected Malvo's Following his conviction and sentencing in insanity defense and convicted him of all the Chesapeake City Circuit Court, Malvo charges, including the two capital murder entered an "Alford plea" pursuant to a plea charges. agreement in the Circuit Court for the County At the sentencing phase of trial, the jury was of Spotsylvania, Virginia, pleading guilty to instructed to choose between the death one count of capital murder, one count of penalty and life imprisonment without attempted capital murder, and two counts of parole. During this phase, Malvo's counsel using a firearm in the commission of a felony. presented additional evidence on Malvo's The plea agreement indicated that Malvo's background and history, and he stressed attorney had advised Malvo that he faced Malvo's youth and immaturity in arguing that death or imprisonment for a term of life for Malvo should be spared the death penalty. the capital murder charge and a sentence of The jury returned its verdict on December 23, 20 years to life imprisonment for the 2003, finding "unanimously and beyond a attempted capital murder charge. In the reasonable doubt after consideration of agreement, Malvo waived his "right to an [Malvo's] history and background that there appeal" and admitted that "the [was] a probability that he would commit Commonwealth ha[d] sufficient evidence to criminal acts of violence that constitute a convict [him]." The Commonwealth in turn continuing serious threat to society" and also agreed to dismiss two pending charges and "that his conduct in committing the offense agreed that sentencing Malvo to two terms of was outrageously or wantonly vile, horrible life imprisonment without parole, as well as or inhuman in that it involved depravity of eight years' imprisonment for the firearm mind." Nonetheless, the jury, "having offenses, was the "appropriate disposition in considered all of the evidence in aggravation this case." and mitigation of the offense," "fix[ed] his

252 The Spotsylvania County Circuit Court held Chesapeake City Circuit Court and the other a plea and sentencing hearing on October 26, addressing the same sentences from the 2004, at which it confirmed that Malvo Spotsylvania County Circuit Court. understood "that by pleading guilty [he was] giving up constitutional rights" — The district court denied and dismissed with specifically, his "right to a trial by jury" and prejudice both applications, concluding his "right to confront and cross examine [his that Miller was not "retroactively applicable accusers]" — and that he was also "probably to cases on collateral review," 28 U.S.C. § giving up [his] right to appeal any decisions 2244(d)(1)(C), and that Malvo's habeas made by this Court." After ensuring that applications therefore were time-barred Malvo understood the nature of the charges under § 2244(d)'s 1-year period of limitation. against him and had concluded, after After Malvo appealed, his case was placed in consulting with his lawyers, that abeyance while this court and the Supreme his Alford plea was "in [his] best interests," Court addressed whether Miller was to be the court accepted Malvo's guilty pleas, applied retroactively. On January 25, 2016, finding that they "were freely, voluntarily, the Supreme Court held that "Miller and intelligently made." It also "accepted and announced a substantive rule that is approved" the plea agreement itself. The retroactive in cases on collateral review." court then sentenced Malvo to two terms of Accordingly, we remanded Malvo's case life imprisonment without parole for his comprising his two habeas applications to the capital murder and attempted capital murder district court for further consideration in light convictions, plus eight years' imprisonment of Montgomery. for the firearm convictions. By memorandum and order dated May 26,

2017, the district court granted both of B Malvo's habeas applications, vacating his Nearly eight years after the conclusion of four sentences of life imprisonment without Malvo's Virginia prosecutions, the Supreme parole and remanding to the Chesapeake City Court held that the Eighth Circuit Court and the Spotsylvania County Amendment prohibits juvenile homicide Circuit Court for resentencing in accordance offenders from receiving "mandatory life- with Miller and Montgomery. In entering without-parole sentences" and that, before that order, the district court rejected the sentencing such an offender to life without Warden's argument that because the trial parole, the sentencing court must first courts retained discretion under Virginia law consider the "offender's youth and attendant to suspend Malvo's life sentences in whole or characteristics." In light of Miller, Malvo in part, those sentences were not mandatory filed two applications for writs of habeas and therefore were not covered by corpus in the U.S. District Court for the the Miller rule. The court explained that the Eastern District of Virginia pursuant to 28 constitutional rule announced in Miller and U.S.C. § 2254, one challenging the life- restated in Montgomery provided relief not without-parole sentences imposed by the only from mandatory life-without-parole

253 sentences but also potentially attributes of youth, juveniles are not as from discretionary life-without-parole morally culpable as adults when engaging in sentences. The district court also rejected the similar conduct. In light of these Warden's argument that in sentencing Malvo, characteristics, the Court recognizes that the Chesapeake City Circuit Court had juveniles as a class are less deserving of the actually considered whether Malvo was one most severe punishments. But it also of those rare juvenile offenders whose crimes recognizes that a rare few juveniles may reflected irreparable corruption, as required nonetheless be found to be permanently by Miller. And finally, the court rejected the incorrigible. Warden's argument that Malvo, in entering the Alford plea in Spotsylvania County Giving effect to these observations, the Circuit Court, waived the Eighth Supreme Court has developed a juvenile- Amendment rights announced in Miller. In sentencing jurisprudence beginning with its conclusion, the district court recognized that 2005 decision in Roper, where it held that the it was "completely possible that any death penalty cannot be imposed on juvenile resentencing conducted in accordance offenders. That decision was followed with Miller and Montgomery[might] result[] by Graham, where the Court held that "[t]he in the same sentences,", but it concluded that Constitution prohibits the imposition of a life Malvo was entitled to the procedure without parole sentence on a juvenile described in those cases before offender who did not commit being sentenced to life without parole. homicide." The Graham Court explained that "[a] State is not required to guarantee From the district court's May 26, 2017 order, eventual freedom to a juvenile offender the Warden filed this appeal. convicted of a nonhomicide crime," but it must give such defendants "some meaningful opportunity to obtain release based on II demonstrated maturity and rehabilitation."

In its Eighth Amendment jurisprudence, the Two years later in Miller, the Court held that Supreme Court recognizes that persons under a juvenile offender convicted of homicide the age of 18 as a class are constitutionally cannot receive a mandatory sentence of life different from adults for purposes of without parole. It explained, "Such sentencing. Juveniles inherently lack mandatory penalties, by their nature, maturity; they do not have a fully formed preclude a sentencer from taking account of character and a fully developed sense of an offender's age and the wealth of responsibility; and they are both more characteristics and circumstances attendant susceptible to external influences and less to it." The Court stated, moreover, that not able to control their environment than are only must "a judge or jury . . . have the adults. Juveniles are also more capable of opportunity to consider mitigating change than adults and therefore more circumstances before imposing the harshest capable of being reformed. Because of these possible penalty for juveniles,", but also the

254 sentencer must actually "take into corruption, it rendered life without parole an account how children are different, and how unconstitutional penalty for a class of those differences counsel against irrevocably defendants because of their status — that is, sentencing them to a lifetime in prison," The juvenile offenders whose crimes reflect the Court did not, however, adopt "a categorical transient immaturity of youth. As a result, bar on life without parole for juveniles," Miller announced a substantive rule of instead reserving the possibility that such a constitutional law. Like other substantive severe sentence could be appropriately rules, Miller is retroactive because it imposed on "the rare juvenile offender whose necessarily carr[ies] a significant risk that a crime reflects irreparable corruption," defendant — here, the vast majority of juvenile offenders — faces a punishment that Finally, in 2016, the Court the law cannot impose upon him. decided Montgomery, holding that Miller announced a new "substantive The Court explained further rule" of constitutional law that applies that Miller contained both a substantive rule retroactively "to juvenile offenders whose and a procedural component: "Miller's convictions and sentences were final substantive holding" was that "life without when Miller was decided." Articulating parole is an excessive sentence for children the Miller rule, the Montgomery Court stated whose crimes reflect transient immaturity," that "Miller requires that before sentencing a and its procedural component implementing juvenile to life without parole, the sentencing the substantive rule requires "[a] hearing judge [must] take into account 'how children where youth and its attendant circumstances are different, and how those differences are considered as sentencing factors" in order counsel against irrevocably sentencing them to "separate those juveniles who may be to a lifetime in prison.'" It then stated: sentenced to life without parole from those who may not." Miller . . . did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established III that the penological justifications for life without parole collapse in light of the In this appeal, the Warden contends that distinctive attributes of youth. Even if a court notwithstanding this new Eighth Amendment considers a child's age before sentencing him jurisprudence governing the sentencing of or her to a lifetime in prison, that sentence juveniles, the district court erred in awarding still violates the Eighth Amendment for a habeas corpus relief to Malvo, giving three child whose crime reflects unfortunate yet reasons in support of his contention. First, he transient argues that "Malvo has no entitlement to immaturity. Because Miller determined that relief under Miller" because "Miller's new sentencing a child to life without parole is rule explicitly applies to mandatory life- excessive for all but the rare juvenile offender without-parole sentences," whereas "the whose crime reflects irreparable Virginia Supreme Court has conclusively

255 held that Virginia does not impose mandatory district court violated the rule established sentences for any homicide offense" because in Teague "by crafting a new rule of judges retain the discretionary right to constitutional law based on Montgomery's suspend sentences; second, that "Malvo discussion of Miller and applying that new received all that Miller would entitle him to rule retroactively." In other words, as the during his trial in Chesapeake [City]" and Warden argues, "the principles of finality therefore is not entitled to resentencing in that discussed in Teague prohibit federal courts jurisdiction; and finally, that "Malvo's from expanding new rules of constitutional voluntary decision to enter into a plea law beyond their holdings," and "the correct agreement with stipulated sentences in approach is to recognize that . . . Miller's new Spotsylvania to eliminate the possibility of rule is defined by Miller itself, [the death penalty] waive[d] any claim he not Montgomery." would have had under Miller" as to the two life-without-parole sentences he received in In response, Malvo contends that he did that jurisdiction. We consider these indeed receive mandatory life-without-parole arguments in turn. sentences within the meaning of Miller because Virginia law provided then and still provides that when a jury declines to A recommend the death penalty for a defendant convicted of capital murder, the defendant First, the Warden contends that because must be sentenced to life imprisonment the Miller rule is limited without parole. He asserts further that to mandatory sentences of life imprisonment Virginia trial courts were not aware at the without parole, it does not implicate Malvo's time of his sentencings in 2004 that they were sentences, which were, under Virginia law, empowered to suspend capital murder subject to the sentencing court's discretion to sentences. Finally, he argues that, in any suspend the sentence in whole or in part. He event, the Miller rule is not limited argues that because Malvo had to mandatory life-without-parole sentences the opportunity under Virginia law to request but also applies, as noted in Montgomery, that his life sentences be suspended, he did to all life-without-parole sentences where the not receive mandatory life-without-parole sentencing court did not resolve whether the sentences and therefore is not entitled to any juvenile offender was "irretrievably corrupt" relief under Miller. Responding to the district or whether his crimes reflected his "transient court's conclusion that Montgomery clarified immaturity." that the rule in Miller applies more broadly than only to mandatory life-without-parole As the Warden asserts, the Virginia Supreme sentences, the Warden contends Court has now twice recognized that Virginia that Miller itself did not sweep so broadly trial courts have long had the authority to and that only the Miller rule applying to suspend life sentences in whole or in part mandatory sentences was made retroactive even following a capital murder conviction in Montgomery. Indeed, he argues that the — an interpretation of Virginia law that is, of

256 course, binding here. But also, as Malvo cases on collateral review. And asserts, it is far from clear that anyone because Montgomery explicitly articulated involved in Malvo's prosecutions actually the rule in Miller that it was retroactively understood at the time that Virginia trial applying, the district court could not have courts retained their ordinary suspension violated Teague in applying that rule. The authority following a conviction for capital Warden may well critique the Supreme murder. We need not, however, resolve Court's ruling in Montgomery — as did whether any of Malvo's sentences were Justice Scalia in dissent— but we are mandatory because Montgomery has now nonetheless bound by Montgomery's made clear that Miller's rule has applicability statement of the Miller rule. beyond those situations in which a juvenile homicide offender received a mandatory life- At bottom, we reject the Warden's argument without-parole sentence. that Malvo "has no entitlement to relief under Miller" on the ground To be sure, all the penalty schemes before the that Miller applies only to mandatory life- Supreme Court in without-parole sentences and instead both Miller and Montgomery were conclude that Miller's holding potentially mandatory. Yet the Montgomery Court applies to any case where a juvenile homicide confirmed that, even though imposing a life- offender was sentenced to life imprisonment without-parole sentence on a juvenile without the possibility of parole. homicide offender pursuant to a mandatory penalty scheme necessarily violates B the Eighth Amendment as construed in Miller, a sentencing The Warden next contends thateven judge also violates Miller's rule any time it if Miller applies to discretionary life- imposes a discretionary life-without-parole without-parole sentences, "Malvo received sentence on a juvenile homicide offender all that Miller would entitle him to during his without first concluding that the offender's trial in Chesapeake," and thus the two life- "crimes reflect permanent incorrigibility," as without-parole sentences that he received in distinct from "the transient immaturity of that proceeding must be permitted to stand. In youth." And we are not free to conclude, as advancing this argument, the Warden notes the Warden argues, that Montgomery's that "[o]ver the course of six weeks, the jury articulation of the Miller rule was mere heard an enormous amount of mitigation dictum. To the contrary, Montgomery stated evidence that was nearly all focused on clearly that, under Miller, the Eighth [Malvo's] youth, upbringing, and Amendment bars life-without-parole impressionability," and that it also "heard sentences for all but those rare juvenile from multiple expert witnesses who testified offenders whose crimes reflect permanent specifically about how Malvo's age and incorrigibility. Indeed, this scope was the upbringing affected his competency." He basis for its holding that Miller announced a argues further that "the trial court and the jury substantive rule that applies retroactively to actually considered [Malvo's mitigation]

257 evidence in imposing the sentences in this Court did not satisfy the requirements of case" and that "the jury's finding of future the Eighth Amendment as articulated dangerousness and vileness shows that in Miller and Montgomery. Malvo is the 'rare juvenile offender whose crime reflect[ed] irreparable corruption.'" Moreover, according to the Warden, the fact C "[t]hat Malvo chose not to use the evidence Finally, the Warden contends that "Malvo's he introduced to argue for a sentence less than voluntary decision to enter into a plea life without parole does not change the fact agreement with stipulated [life-without- that he had the opportunity to present the parole] sentences in Spotsylvania . . . relevant evidence and argue for leniency, waive[d] any claim he would have had which is all that the Eighth under Miller" as to those two sentences. The Amendment requires." Warden notes that "Malvo received a The problem with the Warden's argument, substantial benefit" in "avoid[ing] a second however, is that, as a matter of Virginia law, trial at which he could have been sentenced the jury was not allowed to give a sentence to death" and contends that Malvo must less than life without parole. It was charged therefore "be held to the terms of his with deciding between the death penalty and bargain." He cites Brady v. United States, , life without parole, and it selected the more and Dingle v. Stevenson,, to argue that both lenient of the two. Thus, even though the jury the "Supreme Court and this Court have made did find future dangerousness and vileness, as clear that guilty pleas are not open to revision the Warden notes, it also considered Malvo's when future changes in the law alter the mitigation evidence and found that he calculus that caused the defendant to enter his deserved the lighter of the two sentences that plea." it could give — life without parole. At the outset, we conclude that the resolution Moreover, the Chesapeake City jury was of this issue is not governed never charged with finding whether Malvo's by Brady or Dingle. In Brady, the defendant crimes reflected irreparable corruption or pleaded guilty to a crime that carried the permanent incorrigibility, a determination possibility of the death penalty in order to that is now a prerequisite to imposing a life- avoid that penalty, receiving instead a 50- without-parole sentence on a juvenile year sentence of imprisonment (later reduced homicide offender. Nor were Malvo's "youth to 30 years). When the Supreme Court later and attendant circumstances" considered by held that the death-penalty provision either the jury or the judge to determine involved in Brady's case was whether to sentence him to life without parole unconstitutional, Brady sought to set aside or some lesser sentence. his plea agreement as invalid. The Brady Court rejected Brady's We thus conclude that Malvo's sentencing argument, noting that "even if we assume that proceedings in the Chesapeake City Circuit Brady would not have pleaded guilty except

258 for the death penalty provision . . ., this in Brady and Dingle sought to use new assumption merely identifies the penalty sentencing law as a sword to attack the provision as a 'but for' cause of his plea," but validity of their guilty pleas, here the Warden it "does not necessarily prove that the plea seeks to use Malvo's lawful guilty plea as a was coerced and invalid as an involuntary shield to insulate his allegedly unlawful life- act." Rather, "a plea of guilty is not invalid without-parole sentences from judicial merely because entered to avoid the review. We conclude that Brady and Dingle possibility of a death penalty," even one do not provide him with that shield. subsequently invalidated. Nonetheless, that brings us to the more In Dingle, we applied Brady to similar formidable question of whether Malvo circumstances, concluding that a waived his constitutional challenge to his plea agreement could not be set aside as sentences by signing the plea agreement. involuntary and invalid because it was entered into by Dingle to avoid the death In that agreement, Malvo agreed that penalty when that penalty was later Virginia's summary of the facts could be determined to be unconstitutional in the proven in the case were it to go to trial, circumstances. We noted in Dingle that the accepting that summary "in lieu of Supreme Court had "not suggested that a presentation of any evidence by the substantive rule would stretch beyond the Commonwealth." And, after expressly proscribed sentence to reopen guilty pleas waiving his rights to a speedy and public trial with a different sentence." by jury, to compel the production of evidence and attendance of witnesses, to have a Thus, in both Brady and Dingle, the lawyer, to not testify against himself, and to defendants sought to use new sentencing case be confronted by his accusers, he entered law to attack their convictions — their guilty an Alford guilty plea and waived his right to pleas — without any claim that the sentences an appeal. With respect to punishment, he they actually received were unlawful. The stated in his plea agreement, "I understand question in both cases was thus whether to set that the Commonwealth's Attorney has aside the guilty-plea convictions when agreed that the following specific punishment the penalties that induced the pleas were is the appropriate disposition in this case": later found to be unconstitutional. In both "life in prison without parole" for the cases that relief was denied, and the offenses of capital murder and attempted legality vel nonof the avoided sentences was capital murder and a term of years for the thus held not to cast doubt on the validity of other offenses. Finally, he acknowledged that the guilty plea. In this case, by distinction, "the Court [could] accept or reject this plea Malvo seeks to challenge his sentences, not agreement." It is noteworthy, however, that in his guilty-plea convictions, on the ground the plea agreement, Malvo did not himself that they were retroactively made agree that life-without-parole sentences were unconstitutional under the rule announced appropriate punishments for his crimes. That in Miller. Thus, whereas the defendants is not to say, of course, that Malvo did not

259 expect that he was avoiding the death penalty IV by receiving life sentences without parole. To be clear, the crimes committed by Malvo To begin, it is far from clear that a broad and John Muhammad were the most heinous, waiver of a substantive constitutional right, random acts of premeditated violence as the Warden maintains happened here, conceivable, destroying lives and families would even be enforceable. and terrorizing the entire Washington, D.C. metropolitan area for over six weeks, But, in any event, the plea agreement in this instilling mortal fear daily in the citizens of case does not provide any form that community. The Commonwealth of of express waiver of Malvo's right to Virginia understandably sought the harshest challenge the constitutionality of his sentence penalties then available under the law, and in a collateral proceeding in light of future the Warden now understandably seeks to Supreme Court holdings, nor was he advised sustain the penalties that were then legally during his plea colloquy that his Alford plea imposed with arguments that are not without would have that effect. He did expressly substantial force. waive constitutional rights relating to trial and his right to direct appeal, but nothing But Malvo was 17 years old when he with respect to the right to pursue future committed the murders, and he now has the habeas relief from his punishment. retroactive benefit of new constitutional rules Consequently, the Warden's waiver argument that treat juveniles differently for sentencing. must rest on some form Because we are bound to apply those of inherent or implied waiver of his right to constitutional rules, we affirm the district challenge his sentences as unconstitutional. court's grant of habeas relief awarding Malvo new sentencings. We make this ruling not In the circumstances, we decline to hold that with any satisfaction but to sustain the law. Malvo implicitly waived his right to argue, As for Malvo, who knows but God how he based on intervening Supreme Court will bear the future. holdings, that his sentences were ones that the State could not constitutionally impose on AFFIRMED him. We thus conclude that, while Malvo's convictions remain valid, nothing in his plea agreement precludes him from obtaining habeas relief under the new rule in Miller. Accordingly, we reject the Warden's argument that Malvo waived his right to challenge his sentences.

260 “Supreme Court Will Hear Case of Lee Malvo, the D.C. Sniper”

New York Times

Adam Liptak

March 18, 2019

The Supreme Court on Monday agreed to Richmond, Va., ruled that Mr. Malvo was decide whether Lee Malvo, the younger of entitled to new sentencing hearings. the two men who terrorized the Washington region with sniper shootings in the fall of “To be clear,” Judge Paul V. 2002, may challenge his sentences of life in Niemeyer wrote for the panel, “the crimes prison without the possibility of parole. committed by Malvo and John Muhammad were the most heinous, random acts of The court also agreed to hear constitutional premeditated violence conceivable, challenges to state laws allowing non- destroying lives and families and terrorizing unanimous juries and barring the insanity the entire Washington, D.C., metropolitan defense. area for over six weeks, instilling mortal fear daily in the citizens of that community.” Mr. Malvo, now 34, was 17 when he and John Allen Muhammad killed 10 people in sniper “But Malvo was 17 years old when he attacks in Virginia, Maryland and the District committed the murders, and he now has the of Columbia. Mr. Muhammad was sentenced retroactive benefit of new constitutional rules to death, and he was executed in 2009. that treat juveniles differently for sentencing,” Judge Niemeyer wrote. Mr. Malvo was sentenced to life in prison by judges in both Virginia and Maryland. He “We make this ruling not with any challenged his Virginia sentences satisfaction but to sustain the law,” the judge under Supreme Court decisions that limited concluded. “As for Malvo, who knows but life sentences for juvenile offenders. God how he will bear the future.”

The central legal issues in the case the Virginia officials asked the Supreme Court to Supreme Court agreed to hear, Mathena v. review that ruling, noting that the state’s Malvo, No. 18-217, was whether Mr. Malvo Supreme Court had come to the opposite had been sentenced under a law that made a conclusion on the legal question in the case. life sentence mandatory and whether the Supreme Court decisions applied The United States Supreme Court also agreed retroactively to Mr. Malvo. to decide whether the Constitution allows non-unanimous verdicts in criminal cases. In June, a unanimous three-judge panel of the United States Court of Appeals, in

261 The case, Ramos v. Louisiana, No. 18-5924, review in the case, Kahler v. Kansas, No. 18- concerns Evangelisto Ramos, a Louisiana 6135, lawyers for Mr. Kahler wrote that the man who was convicted in 2016 for killing a state’s approach “defies a fundamental, woman in New Orleans. The jury’s vote was centuries-old precept of our legal system: 10 to 2, which was enough under the state’s People cannot be punished for crimes for law at the time. Louisiana has since amended which they are not morally culpable.” its state Constitution to bar non-unanimous verdicts, but the move came too late to help The Kansas law, they wrote, violates the Mr. Ramos. Eighth Amendment’s prohibition of cruel and unusual punishment and the Fourteenth Oregon is the last remaining state that allows Amendment’s guarantee of due process. non-unanimous verdicts in criminal cases. Lawyers for Kansas responded that the state In a pair of decisions in 1972, one each had refined but not eliminated the insanity from Oregon and Louisiana, the Supreme defense, allowing defendants to argue instead Court ruled that the Constitution does not that “as a result of mental disease” they require states to insist on unanimity. Critics “lacked the mental state required” to be say the decisions ignored the historical record convicted. and made assumptions about jury behavior that have been called into question by more recent research.

The court also agreed to decide whether states may abolish the dominant version of the insanity defense. The case concerns James Kahler, who was sentenced to death for killing four family members. His lawyers said he suffered “from depression so severe that he experienced extreme emotional disturbance, dissociating him from reality.”

“Although he knew that he was shooting human beings,” Mr. Kahler’s lawyers said of their client, “his mental state was so disturbed at the time that he was unable to control his actions.”

Kansas is one of five states in which defendants cannot avoid criminal punishment by showing that their mental illness prevented them from knowing their actions were wrong. In their petition seeking

262 “Supreme Court to Consider Whether Beltway Sniper Lee Boyd Malvo Deserves New Sentencing”

The Washington Post

Robert Barnes

March 18, 2019

The Supreme Court on Monday said it will imprisonment without the possibility of consider whether Lee Boyd Malvo, the parole. teenage half of the Beltway snipers who terrorized the Washington region 16 years Since then, the Supreme Court’s ago, may challenge his sentence of life in jurisprudence on juvenile murderers has prison without parole. changed. It said the death penalty was off- limits for juveniles, and in 2012 said that Malvo, 34, was a 17-year-old when he and mandatory life sentences without the John Allen Muhammad committed what possibility of parole were unconstitutional for Virginia officials called “one of the most those under 18. notorious strings of terrorist acts in modern American history.” Between Sept. 5 and Oct. A divided court found that sentencing a child 22, 2002, Muhammad and Malvo killed 10 to life without parole is excessive for all but people and wounded others in sniper attacks “the rare juvenile offender whose crime in Virginia, Maryland and the District of reflects irreparable corruption.” In sentencing Columbia. defendants 17 and younger, judges must now consider whether a juvenile’s crime reflects Muhammad was executed in 2009, but Malvo “irreparable corruption” or simply “the received sentences of life without parole in transient immaturity of youth.” Virginia and Maryland. The court has also said the rulings are The Supreme Court’s actions announced retroactive. Monday involve the Virginia sentences and will be heard in the term that starts in Some courts have interpreted the rulings to October. mean that mandatory life without parole laws are unconstitutional, but that those that offer After a 2003 trial in which Malvo was a judge discretion are not. The Virginia convicted of shooting FBI analyst Linda Supreme Court ruled against Malvo. Franklin outside a Fairfax County Home Depot store, a jury decided against the death But a panel of the U.S. Court of Appeals for penalty. Instead, it recommended life the 4th Circuit in Richmond said it was clear Malvo deserved a new sentencing: No judge

263 ever considered whether Malvo’s crime represented “irreparable corruption.”

The unanimous panel said that the Beltway shootings “were the most heinous, random acts of premeditated violence conceivable, destroying lives and families and terrorizing the entire Washington, D.C., metropolitan area for over six weeks, instilling mortal fear daily in the citizens of that community.”

But, “Malvo was 17 years old when he committed the murders, and he now has the retroactive benefit of new constitutional rules that treat juveniles differently for sentencing,” the judges concluded.

The Virginia Supreme Court had found the commonwealth’s laws were not incompatible with the U.S. Supreme Court’s rulings because “Virginia law does not preclude a sentencing court from considering mitigating circumstances, whether they be age or anything else.”

There are similar splits around the country

Malvo’s Maryland sentences were upheld in 2017. A state court judge said that the sentencing judge had specifically taken into account Malvo’s age and other mitigating factors — Malvo was brought illegally into the country by Muhammad, who was 25 years his senior and masterminded the attacks

— in deciding he deserved life imprisonment.

That decision is on appeal to Maryland’s highest court. In addition, Malvo has challenged his sentences in federal court in Maryland.

The Supreme Court case is Mathena v. Malvo.

264 “Supreme Court to Consider Life-Without-Parole For Teen DC Sniper”

ABA Journal

Debra Cassens Weiss

March 18, 2019

The U.S. Supreme Court has agreed to decide \sentencing judge didn’t consider whether his whether its decision banning mandatory crime reflected “irreparable corruption,” the sentences of life without parole for juveniles only type of crime for which juvenile life can be used to upend discretionary life- sentences are allowed under the two without-parole sentences imposed on teens precedents. before the Supreme Court acted. The other convicted D.C. sniper, John Allen The Supreme Court agreed to consider the Muhammad, was executed in 2009. question in the case of Lee Boyd Malvo, who was a teen when he and an older man killed The case is Mathena v. Malvo. The 10 people in a series of sniper slayings in the SCOTUSblog case page is here. Washington, D.C., area in 2002, the Washington Post reports. Malvo was sentenced to life without parole in Virginia and Maryland; the Supreme Court will review the Virginia cases.

The Supreme Court banned sentences of life without parole for juveniles in the 2012 case, Miller v. Alabama. In 2016, the Supreme Court ruled in Montgomery v.

Alabama that its ban on teen life-without- parole sentences applies retroactively.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals ruled in Malvo’s case that the retroactivity decision allows reconsideration of discretionary life sentences as well as mandatory sentences, according to the state’s cert petition.

An opposition brief filed for Malvo says the

4th Circuit had ruled for Malvo because the

265 “U.S. appeals court calls D.C. sniper’s life sentences illegal”

Reuters

Jonathan Stempel

June 21, 2018

A federal appeals court on Thursday said a shooting spree. He was executed in 2009 at sniper serving life in prison without parole age 48 in a Virginia state prison. over deadly shootings that traumatized the Washington, D.C. area in 2002 must be Niemeyer called Malvo’s and Muhammad’s resentenced in Virginia because he was only crimes “the most heinous, random acts of 17 at the time of his crimes. premeditated violence conceivable.”

The 4th U.S. Circuit Court of Appeals denied Virginia Attorney General Mark Herring had an appeal by prosecutors who said Lee Boyd argued that Malvo’s sentences in that state Malvo need not be resentenced over his role were acceptable because the trial judge had in the D.C. sniper case, which left 10 people discretion to impose lesser punishment. dead over three weeks in Washington, Charlotte Gomer, a spokeswoman for Maryland and Virginia. Herring, said that office may appeal to the It cited recent U.S. Supreme Court decisions entire 4th Circuit or the Supreme Court. that mandatory life sentences without parole “We are going to review the decision closely for juveniles were unconstitutional, and that and decide how best to proceed in a way that this rule applied retroactively. ensures this convicted mass murderer faces “We make this ruling not with any justice for his heinous crimes,” she said. satisfaction, but to sustain the law,” Circuit Craig Cooley, a lawyer for Malvo, said he Judge Paul Niemeyer wrote for a three-judge was pleased with the decision. panel of the Richmond, Virginia-based appeals court. “As for Malvo, who knows but “In Lee’s case, the sheer number of God how he will bear the future.” convictions means he will still serve at least a very substantial portion of his life in Malvo, 33, had received four life sentences in prison,” he added. Virginia, after being convicted of two murders and later entering a separate guilty The appeals court said Malvo could be plea to avoid the death penalty. He also resentenced to life without parole if his received life without parole in Maryland. crimes reflected “permanent incorrigibility,” or a lesser punishment if his crimes reflected John Allen Muhammad, Malvo’s older accomplice, was also convicted over the

266 the “transient immaturity” associated with Malvo and Muhammad were arrested after being 17. police found them sleeping at a Maryland rest area in a Chevrolet Caprice. Thursday’s decision affirmed a May 2017 ruling by U.S. District Judge Raymond The case is Malvo v Mathena, 4th U.S. Jackson in Norfolk, Virginia. Circuit Court of Appeals, No. 17-6746.

267