Is the Federal Death Penalty Act’s Evidence Rule Unconstitutional?

Is the Federal Death Penalty Act’s evidence provision unconstitutional? Does the defendant have a constitutional right to introduce evidence of marginal probative value outweighed by other considerations, which the statute says the trial judge may exclude?

These are the surprising implications of the defense argument in the Boston Marathon Bomber case, argued in the U.S. Supreme Court October 13. I suppose if you are defending the indefensible you have to argue something. But it is surprising when a lawyer barely mentions the primary ground of the decision she is asking to have affirmed.

The Court of Appeals Decision and the Top-Side Briefing

In July of last year, the U.S. Court of Appeals for the First Circuit in Boston reversed the death sentence and some of the convictions (though not on the capital offenses) of Dzhokhar Tsarnaev, the survivor of the pair of brothers who committed the horrible bombing of the Boston Marathon in 2013. Here is how the panel introduced its discussion of its holding:

Dzhokhar’s briefs raise 16 issues for review, many with sub-issues and even sub-sub-issues. As we have previewed already, the judge’s Patriarca-based error compels us to vacate the death sentences and his crime-of-violence errors require us to reverse three § 924(c) convictions. Not only do we explain those errors below. We also address other issues (even if just briefly) because we know they are likely to resurface on remand.

Patriarca is an old First Circuit precedent regarding questioning of potential jurors in highly publicized cases about what they have seen in the media coverage. It was not mentioned at all to the district court or in the previous proceedings in the First Circuit. It is unmistakably the primary basis for reversal of the sentence with other issues relegated to guidance for the retrial. One of those other issues related to the trial judge’s exclusion of evidence that the now-deceased brother had previously participated in and possibly been the leader of an unrelated murder of drug dealers.

In SCOTUS parlance, the “top-side briefs” are the briefs of the party who asked the Court to take the case (almost always the party who lost in the lower court) and the amici curiae (friends of the court) filing briefs in support of that party (the “petitioner for certiorari”). Amicus briefs supporting neither party are due at the same time as those supporting the petitioner for cert.

Naturally, given the First Circuit’s decision, the Government devoted 2/3 of its brief to the jury questioning issue. Supporting amicus Criminal Justice Legal Foundation also addressed primarily this question, with only a couple of pages on the evidence question. The Fraternal Order of Police amicus brief is entirely on this question.

The American Bar Association filed a strange brief entitled “in support of neither party,” even though the meat of it is entirely in line with the Court of Appeals decision on the jury questioning issue. The purported reason for the nominal “neither party” stance is this: “The ABA takes no position on the case-specific question whether the court of appeals’ judgment should be affirmed or reversed here, which may depend on factors beyond the scope of ABA voir dire policies.” Funny, they haven’t shied away from case-specific applications of their policies to support murderers outright in the past. I suspect that they were worried about the political backlash from frankly admitting that they were supporting a terrorist.

The Evidence

Tsarnaev’s trial lawyers wanted to introduce evidence that his older brother and co-conspirator Tamerlan participated in, and perhaps personally committed, the murder of three drug dealers. The main evidence for this is the statement Tamerlan’s co-perpetrator Ibragim Todashev made to an FBI agent immediately before he attacked the agent and was killed by him. Unfortunately, the portion of the Joint Appendix with the evidence is sealed and not in the part released to the public. However, it is described in the First Circuit opinion in the appendix to the petitioner for certiorari at pages 64a-67a. As described in the briefs, Tamerlan and his accomplice Todashev robbed drug dealers in Waltham, Massachusetts to get money and then murdered them to cover their tracks. While the defense claims the purpose of the robbery was to get money to fund jihad, nothing in Todashev’s statements to police as related by the First Circuit or the defendant’s brief (see below) says that. Tamerlan is also dead, having been run over by his brother while struggling with police. The other piece of evidence is a statement by a friend of the defendant’s that defendant said that Tamerlan had committed “jihad” in Waltham.

If that evidence leaves you saying “So what? What does that have to do with whether Tsarnaev deserves the death penalty for the Marathon bombings?”, welcome to the club. The trial judge is also a member.

The Statute

This brings us to the evidence provision of the Federal Death Penalty Act (FDPA). First, to place it in context, I will describe the most basic rules of evidence in the first three rules of Article IV of the Federal Rules of Evidence. All emphasis is added.

Rule 401 defines “relevant evidence” as evidence that “has any tendency to make a fact more or less probable than it would be without the evidence,” if that fact matters in the case. That is a very low threshold, by design. Rule 402 says irrelevant evidences is not admissible. Relevant evidence is admissible unless barred by another rule, a statute, or the Constitution.

With that context, here is Rule 403:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Note that the whole point of Rule 403 is to exclude evidence that does have some relevance and probative value but not a lot. Irrelevant evidence is already excluded by Rule 402.

Now we come to the federal death penalty statute in title 18 of the U.S. Code. Section 3592 specifies aggravating and mitigating factors, while section 3593(c) governs the admissibility of evidence to prove those factors. Factors and admission of evidence to prove them are not the same. Among the mitigating factors are duress, minor participation, and the catchall factor: “Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.” That last one is required by the Supreme Court’s misinterpretation of the Eighth Amendment in the 1978 case of Lockett v. Ohio. See this article.

If you think that last one means every factor including the kitchen sink that defendant wants, you are catching on. But does every factor being considered require that every scrap of evidence, no matter how dubious or minimally probative, be admitted? That is a different question, and the FDPA unambiguously answers it “no.” From § 3593(c):

The defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a). Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.

Notice a few things. First, the evidence rule is almost entirely symmetrical. The government has an additional requirement to give notice, but otherwise the rule is the same for both sides. Second, the last sentence is solely for the purpose of excluding evidence that does have some relevance, just like Rule 403, from which is it obviously taken. Irrelevant evidence is already excluded in the previous two sentences. If all relevant evidence were admissible, the last sentence would not be in the statute. If all relevant evidence were admissible on the defense side but not the prosecution side, the sentence would be written for the prosecution only, just like the notice requirement. But it is not.

This statute cannot honestly be interpreted to say that the trial judge is powerless to exclude evidence proffered by the defense if it has any relevance at all to any mitigating factor. Language cannot be stretched that far.

Mitigating Factors, Evidence, and the Constitution

Since the Lockett case, the Supreme Court has, on many occasions, reversed death penalty judgments because the sentencer did not consider or was precluded from considering a particular mitigating factor. In most of these cases, the evidence was before the sentencer, but the sentencing jury was instructed in a way that blocked consideration of it or the sentencing judge stated that he was not considering it. That was the case in Lockett v. Ohio (1978) (relatively minor role in the crime), Eddings v. Oklahoma (1982) (youth and deprived background), and Penry v. Lynaugh (1989) (intellectual disability).

One of the very few cases to find Lockett error from an evidentiary ruling was Skipper v. South Carolina (1986). In that case, evidence of the defendant’s good adjustment to prison life was excluded because the judge considered it irrelevant. That is, the evidentiary ruling followed from a view, which the Supreme Court found erroneous, that the factor this evidence went to prove was not a proper one to even consider in the aggravating v. mitigating weighing. It had nothing to do with the reliability of the evidence or its probative value in proving the factor it was admitted to support. In that context, the Court noted the Lockett rule about relevant factors and noted “the corollary rule that the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence,’ ” quoting Eddings.

So does that mean there is a constitutional mandate to admit all evidence with any relevance to any mitigating factor? Not so fast. Here is the full sentence from Eddings. “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” (Italics in original.)

Why is “as a matter of law” in there and why is it italicized? The judge in Eddings refused to consider the evidence because he thought the law of sentencing forbade considering it, not because there was something wrong with the evidence as evidence.

Looking further down in the Skipper opinion, we can see clearly that Skipper does not understand the Constitution to break down all rules of evidence. The state argued that the evidence in question was inadmissible because it was opinion testimony by non-experts, which is sharply limited by the evidence rules in most jurisdictions. See, e.g., Federal Rule of Evidence 701. If Lockett and Eddings really meant what Tsarnaev now claims, the Skipper Court would simply have said, “that doesn’t matter because the Eighth Amendment breaks down all barriers except relevance for mitigating evidence.” But the Court did not say that. It said, “The record does not, however, support the State’s contention that the trial court’s ruling was no more than an evenhanded application of rules restricting the use of opinion testimony,” and went on to explain why on the particular facts of the case.

The strong implication of this passage of Skipper is that “evenhanded application of rules” of evidence is generally permitted in the penalty phase of capital cases. Indeed, California applies the full Evidence Code in the penalty phase, its Supreme Court has upheld hundreds of capital judgments, and no one has gotten the U.S. Supreme Court to even take up a case on the ground that relevant mitigating evidence was excluded under the Evidence Code.

There is one case where the Supreme Court reversed a penalty judgment for excluding evidence under the state’s evidence rules and not under a misapprehension of which factors can be considered in mitigation. That decision, significantly, was made under the Due Process Clause and not under the Eighth Amendment.

Green v. Georgia, 442 U.S. 95 (1979) was a two-perpetrator felony-murder case in which Green claimed that he did not personally kill the victim and was not even present at the time of the killing. He offered the other perpetrator’s (Moore) statement to that effect to a third party (Pasby). The Supreme Court held that exclusion of this evidence as hearsay was error.

Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it. In these unique circumstances, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U. S. 284, 302 (1973). Because the exclusion of Pasby’s testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

P. 97, footnotes omitted, emphasis added.

Note that Green does not say that this is an Eighth Amendment error under Lockett. That case is cited but only for the proposition that the evidence is relevant (which it would be anyway under Georgia’s wide-open capital sentencing law). The Court takes care to note that the evidence is reliable and corroborated. The precedent for reversal is a noncapital case decided under the Due Process Clause, not the Supreme Court’s Eighth Amendment “death is different” cases. It says that the hearsay rule “may not be applied mechanistically to defeat the ends of justice.” It does not say that the hearsay rule or any other rule of evidence may not be applied against the defendant in the penalty phase of a capital case at all. If that were the law, it would have been a lot simpler to just say so. But it is not. Indeed, the Court says its holding that the state cannot apply its hearsay rule is based on “unique circumstances,” not an overarching rule for all capital penalty trials.

The Bottom-Side Briefing

According to the defendant’s brief, the defendant’s attorneys asked the trial judge to submit to the jury the following mitigating factors for their consideration, which he did:

• Dzhokhar “acted under the influence of his older brother”;
• “because of Tamerlan’s age, size, aggressiveness, domineering personality, privileged status in the family, traditional authority as the eldest brother, or other reasons, [Dzhokhar] was particularly susceptible to his older brother’s influence”;
• “[Dzhokhar] would not have committed the crimes but for his older brother Tamerlan”;
• Tamerlan “planned [and] led” the bombings; and
• “Tamerlan Tsarnaev became radicalized first and then encouraged his younger  brother to follow him.”

All of that is more likely true than not, but none of it comes close to outweighing the monstrosity of the crime or the conclusive evidence that the younger Tsarnaev was an entirely voluntary participant and remained proud of what he did after his brother was dead and unable to further influence him. Neither the evidence introduced at trial nor the evidence excluded comes remotely close to establishing the statutory mitigating factor of duress.

Notice that the word “duress” is missing from the factors that the defense asked for, and instead they say “influence.” That is a big difference. Duress is strongly mitigating; mere influence is not. I have never seen “influence” as a statutory mitigating factor in any American capital sentencing statute. It comes in only because of the catch-all clause, for whatever weight the jury wants to give it.

Did the defense really have any difficulty proving the bullet-pointed list above? Here is what their own brief says:

Dzhokhar’s reverence for his older brother Tamerlan, seven years older, was evident to everyone. A gym owner observed that Dzhokhar followed Tamerlan around “like a puppy” while Tamerlan was training to be a boxer. 17.A.7745. A close relative recalled that Dzhokhar “went along any time Tamerlan would say let’s go do this and that,” just as a “good younger brother” was “supposed to [do] in [a] Chechen family.” 18.A.8348, 8347, 8205-8206.

The prosecutor said that the bombing was a partnership of equals, but in context he was referring to their acts and their moral culpability for committing them. Almost all conspiracies have a leading member, and between brothers with a seven-year age difference it would be rare for the younger one to be the leader. But one can be a follower and still be a full, voluntary, and enthusiastic partner. Does anything in the Waltham evidence have any significant probative value to the contrary?

The defense brief refers to the Waltham evidence as “powerful” because it shows “Tamerlan’s commission of a jihad-inspired triple murder, which Dzhokhar learned about during Tamerlan’s campaign of radicalization.” There are two problems with that. First, the evidence that the murder was actually “jihad-inspired” is quite weak. Second, even if it were, it adds little to the basic point that Tamerlan was the dominant brother of the pair.

The defense claims “Abundant evidence showed that Tamerlan committed the Waltham murders as a form of violent jihad.” Really? Abundant? Here it is:

• Public records showed that on September 11, 2011, Brendan Mess and two others were beaten, robbed, and had their throats slit, in a Waltham apartment. Mess was Tamerlan’s close friend, J.A.998, and there was no sign of forced entry.

• After the bombings, Todashev confessed to investigators that he and Tamerlan committed the murders. He stated that Tamerlan planned the robbery, brought a gun, decided to kill the victims, and committed the murders. J.A.912-916. That statement was memorialized in audio recordings and an FBI “302” report. The government recounted some of Todashev’s statements in seeking a search warrant for Tamerlan’s car, representing in a sworn affidavit that those statements, together with corroborating evidence, established probable cause that Tamerlan committed the Waltham murders. J.A. 998.

• Independently, Dzhokhar’s friend Dias Kadyrbayev told the government, through counsel, that Dzhokhar said in fall 2012 that Tamerlan was “involved in the Waltham murders” and “‘committed jihad’ in Waltham.” J.A.584. Dzhokhar also stated that Tamerlan had a gun that he disposed of before being interviewed by law enforcement. Ibid.

• Tamerlan’s computer contained Anwar al-Awlaki’s argument that stealing money from nonbelievers to support jihad conformed to Islamic precepts. 25.A.11643-11655.

• Within a week of the murders, Tamerlan’s wife (or Tamerlan himself) performed Internet searches for “3 men killed in waltham,” “men kill in waltham,” and “tamerlan tsarnaev.” J.A.590.

Note that three of the five points have nothing at all to do with whether the crime was an act of jihad. The omission of such a claim from the Todashev statement tends to point the other way. Todashev fingers Tamerlan as the leader of that conspiracy, but that is the self-serving statement of perpetrator seeking to cut a deal, one of the least credible forms of evidence, as well as hearsay from a now-deceased witness. The Kadyrbayev statement is double hearsay, and the computer file is extremely tangential with near-zero probative value.

So despite the defense’s protests of “powerful” evidence, all that is really in dispute is highly dubious evidence of facts that are themselves very tangential to the issues in the case. The FDPA explicitly authorizes the trial judge to exclude evidence of minimal probative value based on a weighing against the listed factors. Does the Eighth Amendment say otherwise?

The defense brief categorizes the judge’s order as exclusion of an entire category of evidence. It is not. This is not like Skipper, where the judge declared the entire category of post-crime adjustment to and behavior in prison to be off-limits. The defense was free to introduce evidence supporting its claimed mitigating factors of the defendant being the follower and being influenced by his brother, and it did so. That is the category. What was excluded was evidence of one unrelated crime supporting only a weak inference regarding the claimed mitigating factors.

The defense brief cites Green for the proposition “that substantive evidentiary rules such as hearsay rules cannot overcome the Eighth Amendment right to present relevant, reliable mitigating evidence ….” That is just flat wrong, as discussed above. Green is not an Eighth Amendment case at all. Although it was a capital case, it simply applied the due process rule from Chambers v. Mississippi, a noncapital case. Further, as also discussed above, Green did not say that the Constitution trumps all rules of evidence but strongly implies the contrary.

A group of law professors filed an amicus brief in support of the defendant. They cite the cases discussed above and a few others but gloss over the distinction between factors and admissibility of evidence, aided by some sloppy language in the opinions themselves. For example, they cite the 2004 case of Tennard v. Dretke for the “general evidentiary standard of relevance ” for mitigating evidence in capital cases. But Tennard is not about admissibility of evidence at all. The defendant was allowed to introduce his evidence in that case. The dispute was about the instructions given to the jury regarding how to consider it. This difference in context makes the Tennard case inapposite to the present controversy.

Having teed up a dubious constitutional question about § 3593(c) if it is read to say what it unmistakably does say, the professors ask the Court to read back into the statute the word “substantially” before “outweighs” from Rule 403, even though Congress left it out in enacting the statute. They are horrified that the trial judge might have greater authority to exclude evidence in the sentencing phase of a capital case than in the trial of a noncapital case.

But the absence of the word “substantially” in § 3593(c) must be viewed in the context of the fact that it is the only limitation on relevant evidence in the penalty phase, whereas in trials of guilt all of the other rules of evidence apply. For this reason, the judge needs greater 403-type authority to keep out the garbage. What about quadruple hearsay, opinions on technical questions by people with absolutely no credentials to give them, or a confession beaten out of a person? The latter is not necessarily by the police. How about if a gangster defendant’s gang beats a confession out of a third party? In a guilt-phase trial those unreliable items of evidence would be excluded by specific rules. In the penalty phase, the judge has only the beefed-up 403-type rule to keep them out.

Finally, reading “substantially” in where Congress left it out would not fix the hypothetical constitutional problem posed by the premise that the Eighth Amendment requires admission of all evidence relevant to a mitigating factor without limit. With or without the qualifier “substantially,” Rule 403 and this sentence of § 3593(c) authorize the exclusion of relevant evidence. They have no other function. So the hypothetical problem would only be reduced, not eliminated.

The Reply Brief

The Government’s reply brief does not hit hard on the defense’s error of claiming that the Green rule is based on the Eighth Amendment rather than the Due Process Clause. They do note that Green is a due process rule and note a later per curiam opinion, Sears v. Upton, 61 U.S. 945 (2010), that summarizes Green as holding “that reliable hearsay evidence that is relevant to a capital defendant’s mitigation defense should not be excluded by rote application of a state hearsay rule.” That is a far cry from the case-specific judgment the trial judge made in this case. The Government notes that the defense brief seems to concede that the evidence must be reliable and makes a fact-bound argument that it was not reliable in this case.

The Argument

Finally, we come to the oral argument on October 13. The Government was represented by Deputy Solicitor General Eric Feigin. His initial presentation was entirely on the jury selection question. It is page 21 — half way through his time — before Justice Kagan interrupts him to ask about the evidence question.

Justice Kagan, it is worth noting, is a big advocate of expanding the Eighth Amendment generally and the Lockett rule in particular far beyond any semblance of anything the people have consented to in adopting that amendment. In her opinion for the Court in Miller v. Alabama (2012), she noted that the Court views that amendment through “evolving standards” rather than through a “historical prism.” In other words, the Court has effectively declared itself free from the pesky restraint of the original understanding of the Constitution in interpreting the Eighth Amendment, unlike other provisions of the Bill of Rights. That was true of a bare five-Justice majority at the time of Miller, but Jones v. Mississippi indicates that the present majority is less likely to take such an expansive view.

Justice Kagan asked the DSG to “assume for me that the evidence was very strong that Tamerlan participated in and indeed had a leading role in the Waltham murders, all right?  … In that case, would the court have committed reversible error by refusing to participate –to admit that evidence?”

No, it’s not all right because there is, in fact, almost no reliable evidence of Tamerlan’s leading role. There is only the hearsay statement of the since-deceased accomplice trying to lessen his responsibility for a crime by pinning it primarily on a then-deceased confederate. There is also no reliable evidence that defendant was aware of it, which is needed to make it relevant to his state of mind. Mr. Feigin pushes back on the latter but then concedes, “If the defendant was aware of it and there was strong evidence of it, I think the district court should have let it in.” But, “Neither of those was true here.”

If by “should have let it in” he meant the court would have committed reversible error by excluding it, I think he still conceded too much. Still missing is any reliable evidence that this murder was an act of jihad rather than greed. And even if *that* were established, its probative value in showing the extent of Tamerlan’s influence over the defendant was weak, particularly in the context of more direct evidence about the relationship between the brothers.

Justice Kagan says it was relevant to a mitigating factor, that defendant “was, you know, dominated by, unduly influenced by his older brother ….” Relevant under the very broad definition of any probative value at all, but it still had very little probative value, which is what § 3593(c) requires to be weighed.

Justice Kagan asks, “But how is that the job of a district court to evaluate, much less decide, that question?”, i.e., strength of the evidence. Well, for starters, the statute says so flat out. It directs the trial judge to weigh probative value. Rule 403 requires the same in federal trials, and nearly every American jurisdiction has a similar rule.

Justice Sotomayor weighs in with “this is a constitutional right to present mitigating evidence.” No nuances here. Is she assuming that the Eighth Amendment Lockett line just tramples all rules of evidence for mitigation in the capital penalty phase? “I don’t know of any other situation where you can deny a defendant a constitutional right on a simple weighing.” Sure sounds like it. This is the fallacy of assuming the conclusion. She just assumes that excluding the evidence would violate a constitutional right.

Justice Kagan gets back to her assertion that this evidence is the defense’s “entire case.” Mr. Feigin responds that the probative value is not “particularly strong.” An understatement, IMHO. I’m with the trial judge that the probative value is zero or close to it.

Justice Alito comes to the heart of the constitutional question.

This evidence is inadmissible many times over in a regular trial, where we have Rules of Evidence, but at the mitigation phase of a penalty of a capital case, maybe the rule is anything goes.

And if that is the case –well, that’s what I want to know. Is it really anything goes?

No, it is not, as explained above. The Skipper rule is limited to evidence erroneously excluded on the ground that the factor defendant sought to prove was not a mitigating factor, when Lockett says it can be and the jury must consider it. That case implicitly acknowledged that evidence could be excluded if inadmissible on other grounds. Green is a due process rule limited to arbitrary exclusion of reliable evidence based on a rigid application of rules of evidence. Neither one precludes a case-specific application of a 403-type rule.

In response, Mr. Feigin gets the substance of the Green rule right, although he erroneously assigns it to the Eighth Amendment rather than the Fifth. And back once again to the specifics of the case, this is all hearsay statements of dead people.

Justice Gorsuch asks a couple of times for an explanation of why the evidence wasn’t relevant. That is not quite right. To be excluded under the sentence in question, evidence can have nonzero probative value (and hence be relevant), but its probative value is weak.

Justice Kavanaugh refers back to Justice Kagan’s “assume” question at the beginning and notes to the DSG, “I’m confused because you were asked to assume away what I think was the district court’s reasoning here ….” It is odd to assume the strength of the evidence when reviewing a decision based on the weakness of the evidence. “I mean, maybe to answer Justice Kagan’s question, does the district court have a gatekeeping role here or not? And maybe that’s Justice Alito’s question too.”

Under the statute, at least, the answer is obvious, and Mr. Feigin gives it:

[W]ith respect to the statutory requirements in 3593(c), the district court does have a very important gatekeeping role here….

It’s not really an anything goes regime, even in the penalty phase of a capital trial. It is a much, much lower evidentiary standard, everyone agrees, and the Eighth Amendment requires, but it’s not —it’s not anything goes.

And the district court reasonably exercised its discretion here to keep out inherently unreliable evidence that wasn’t especially probative and had a substantial risk of confusing the jurors ….

Ginger Anders argued for the defendant. She mentioned the First Circuit’s primary reason for reversing the sentence, the jury selection issue, but her argument focused on the exclusion of evidence.

Second and more fundamentally, the district court violated the Eighth Amendment by categorically excluding evidence that Tamerlan robbed and murdered three people as an act of jihad. That evidence was central to the mitigation case.

Categorically? What does she mean by that? It is not excluded like the evidence in Skipper, where the entire category of post-crime behavior was excluded on the ground it was not a mitigating factor. It is not excluded like the evidence in Green, where a category defined by a rule of evidence is excluded without regard to how probative or how reliable the particular evidence before the court may be. This is just the opposite of those cases — a tailored ruling about this particular evidence in the context of this particular case. How is that “categorical”? Ms. Anders doesn’t say.

And the probative value of the prior murders?

That would have had a profound effect on Dzhokhar, who was already enthralled to his brother and therefore would have felt intense pressure to follow Tamerlan’s chosen path and to accept extremist violence as justified, and Tamerlan’s prior experience carrying out violent jihad made him more likely to have led the bombings.

So defendant was “already enthralled” with big brother, and the defense has no difficulty establishing that. And he already would have felt “intense pressure.” But the prior crime somehow made this more likely? That is a stretch, to put it mildly.

Ms. Anders pounces on Mr. Feigin’s unnecessary acknowledgement that the evidence should have come in if the defense could establish that the defendant knew about it, leaving out the additional requirement that the evidence would have to be strong, which the Government says it isn’t.

She claims legal error in the district court’s statement that the evidence has no probative value at all, even though the ruling would have been the same if the court had said it has minimal probative value.

Justice Alito asks, “Can a trial judge at the penalty phase of a capital trial ever exclude mitigating evidence that meets the very low standard of relevance on the ground that it is highly unreliable?” Ms. Anders concedes that is possible but asserts an Eighth Amendment limitation on excluding evidence that is both relevant and reliable. She concedes that the trial judge “absolutely” can “make a determination of reliability.” But she contends that only “minimal indicia of reliability” are needed. That is, minimal reliability alone is sufficient to trump all rules of evidence that otherwise exclude minimally probative evidence in the penalty phase of a capital case.

Whoa. Where does she get that? Not from any Supreme Court opinion. She says the lower courts have ruled that. Which lower courts? In her brief she cites only the Fifth and Eighth Circuits. What does the rest of the country have to say? What about state supreme courts? In California, as noted above, the full Evidence Code continues to apply, subject to the Chambers/Green rule.

Justice Alito asks about a mini-trial on this unrelated crime, and Ms. Anders replies that unadjudicated crimes evidence often comes in against the defendant in capital penalty trial. Yes, but she is comparing apples and oranges. Prior crimes by the defendant, related or not, are highly relevant in the penalty determination. They are statutory aggravating circumstances in most jurisdictions. There is nearly universal agreement that repeat offenders deserve stronger punishment than first-timers. With such powerful probative value, a mini-trial may be in order. But in this case, an unrelated crime by the deceased co-perpetrator has far less value. And that is exactly the weighing the statute directs.

Justice Barrett asks directly if Ms. Anders is arguing that the exclusion sentence of the statute conflicts with the Eighth Amendment.  She hedges.

Later, Justice Sotomayor says she understood that the argument was that there really is no balancing to be done for mitigating evidence. “It sort of doesn’t make any sense to have a pure 50/50 balancing test with respect to mitigation because it’s a constitutional right.” But the statute clearly calls for a weighing process and it is symmetrically worded with a singled standard for both aggravating and mitigating evidence. Justice Sotomayor is still implying a constitutionally mandated “anything goes” rule. Ms. Anders hedges by saying the Eighth Amendment requires a “strong presumption.” Where did she get that? “[S]o I think it would take some extraordinary concern on the other side to justify categorically excluding evidence ….” Again with the “categorically.” Still ducking the question of the constitutionality of the statute.

Chief Justice Roberts asks if getting into who had the lead role in the Waltham murders would focus the jury on something the district judge found could not be resolved, given that the only two people who knew are both dead. Doesn’t the Supreme Court review that ruling for abuse of discretion? (Unstated, but everyone knows, appellate court review of trial court decisions on such fact-specific questions is quite deferential, and reversals are rare.)

Ms. Anders says, “Well, I think the district court committed legal error in making that conclusion because, again, it’s a question of sort of minimal indicia of reliability.” But the statute does not say that. The statute says the district judge weighs probative value against confusion, etc.

Justice Alito nails the key constitutional question:

Just to be clear, what is your argument about the standard under the federal death penalty statute? Do you argue that the –the balancing applies only to the aggravating evidence and not the mitigating evidence? If it applies to the mitigating evidence, do you argue that it’s inconsistent with the Eighth Amendment?

Ms. Anders tries to dance around it by claiming that the statute is constitutional but the Eighth Amendment adds an additional constraint. That doesn’t make much sense, because the statute says the judge can exclude evidence that fails its test, and she is arguing that the Eighth Amendment forbids what the statute affirmatively authorizes. Justice Alito isn’t buying it. Justice Barrett isn’t buying it either, and on page 87 of the transcript she finally extracts an admission that Ms. Anders is indeed arguing that the statute is unconstitutional as applied in this situation.

Justice Gorsuch seems taken aback by this. “Did you make this argument below that the –the Federal Death Penalty Act is unconstitutional? It –it strikes me as kind of a –a new thing here today.”

No, the defense did not make that argument before, and Ms. Anders tries to retreat to her “just another constraint” ground. But that argument still makes no sense. The FDPA has a specific test for when the trial judge can exclude evidence, and the defense is claiming that the Eighth Amendment mandates an entirely different test. If they are right, the FDPA is unconstitutional as applied to all mitigation evidence that would be excluded under its test but passes the supposed Eighth Amendment test, which itself is based only on a handful of Court of Appeals opinions and is actually contradicted by the Supreme Court opinions cited to support it, Skipper and Green.

In rebuttal DSG Feigin makes case-specific arguments that the evidence is neither reliable nor particularly probative, and in any case wouldn’t have made any difference in this case, where defendant fully and eagerly participated in a horrible crime. Perhaps that is the best strategy to win this specific case, but a much broader problem is at issue here.

No, as several justices noted, it is not “anything goes.” The Skipper opinion acknowledges that rules of evidence, thoughtfully and not mechanically applied, can still keep mitigating evidence out even if relevant. Green is not an Eighth Amendment case at all but rather an application of the same due process rule that governs every criminal trial. These points were not sufficiently briefed because the “top side” brief writers, including me, thought this case was going to be mainly about what the First Circuit said it was mainly about. Hopefully the Court will recognize these points nonetheless.