ensure laws are applied in a uniform fashion. With that in mind, we have new evidence that our nation's highest courts, including the U.S. Supreme Court (SCOTUS), are failing miserably.
I joined Andrew Kreig, attorney and journalist with the Washington, D.C.-based Justice Integrity Project, for a discussion last week about inconsistency in the courts on the Peter B. Collins Show (PBC) out of San Francisco.
The issue began to take shape when SCOTUS refused on January 11 to hear the latest appeal in the case of former Alabama Governor Don Siegelman. Attorneys for Siegelman argued that trial judge Mark Fuller improperly based sentencing, in part, on conduct for which the defendants were acquitted. That, Siegelman argued, interfered with his Sixth Amendment right to a trial by jury.
Antonin Scalia and Clarence Thomas, two of the court's most conservative justices, had indicated in a dissent from a 2014 case (joined by liberal justice Ruth Bader Ginsburg) that they were ready to take on that very issue. Assuming those three voted to hear the Siegelman appeal, that means a yes from only one other justice was needed for the court to accept the case. But no other support was forthcoming, not even from Obama appointee Sonia Sotomayor.
Consider the irony when SCOTUS, one day after refusing to hear the Siegelman case, released Hurst v. Florida, which involved almost the identical judge-vs.-jury question present in Siegelman. Here is how the Orlando Sentinel described the issues in Hurst:
By an 8-1 vote the U.S. Supreme Court declared Florida's capital sentencing scheme unconstitutional, saying in death penalty cases juries – not judges – must spell out at least one reason why the defendant should be put to death.
Under the old system, jurors listened to evidence then voted on whether to recommend life in prison without the possibility of parole or death. Their decision did not need to be unanimous.
The final decision was left to a judge.
In Tuesday's majority opinion, Justice Sonia Sotomayor wrote that by having the judge make the final decision, Florida was violating a defendant's right to be tried by a jury of his peers.
The test case involved Timothy Lee Hurst, who was convicted of murdering his boss in a Pensacola Popeye's restaurant in 1998.
The U.S. Supreme Court did not convert his sentence of one of life in prison. It merely threw out his death sentence. He is still a convicted murderer. It's now up to the state to figure out what sentence to mete out and how to do it.
Yes, you read the highlighted section above correctly. Sonia Sotomayor, who apparently voted not to hear the Siegelman case, wrote the majority opinion finding that Florida's capital-sentencing scheme was unconstitutional because it "was violating a defendant's right to be tried by a jury of his peers."
From the PBC Web site, which includes links to audio of our discussion, and notes a number of Siegelman-related issues that were raised:
In the Siegelman case, now-disgraced Judge Mark Fuller sentenced the former governor for acts the jury had acquitted Siegelman of. In the recent death penalty case, styled Hurst v. Florida, the Supreme Court overturned Hurst's death sentence and struck down part of Florida's capital punishment system because the judge unilaterally imposed the death penalty after the jury merely recommended by 7-5 vote that Hurst be executed.
We discuss how this principle should have been applied to the Siegelman appeal, which was based on Fuller's over-sentencing of Siegelman.
We also talk about President Obama's failure to pardon or commute Siegelman's sentence, and the former governor's recent stretch in "the hole" after prison officials abruptly cut off an interview he was doing with a substitute host on the Thom Hartmann radio show. We discuss the new documentary expected this summer that recaps the layers of injustice in this case, which will be narrated by Martin Sheen.
Is consistency supposed to matter in our courts of law? Consider Rule 35 of the Federal Rules of Appellate Procedure, which addresses the circumstances under which en banc review can be conducted. The rule holds that such a full-panel review is appropriate when it "is necessary to secure or maintain uniformity of the court's decisions."
Rule 10 of the U.S. Supreme Court holds that "certiorari review is properly considered when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter."
What does this tell us in light of the high court's recent handling of the Hurst and Siegelman cases? The lesson seems to be this: Consistency matters on paper; in real life, not so much.