Justice Antonin Scalia: Deval Patrick was right on the Songer case

OK, folks, this Songer business has gone far enough.

In 1985, Deval Patrick represented Carl Ray Songer, arguing that his death sentence was unconstitutionally imposed because of a defect in the Florida capital sentencing statutes that prevented certain mitigating evidence from being considered by the sentencer.  The US Court of Appeals for the 11th Circuit agreed in a unanimous 11-0 en banc decision (the citation is Songer v. Wainwright, 769 F.2d 1488 (11th Cir. 1985) (per curiam)).  The Court held:

The critical and dispositive fact here is that the state trial judge did misinterpret the law and thus failed to consider any nonstatutory mitigation at the time of imposing the sentence of death.

Anyone who knows anything about the federal courts knows that the 11th Circuit is not particularly friendly to criminal defendants.  So this was not a hard case.

But it gets even better.  Further research by yours truly reveals that, in a 1987 case called Hitchcock v. Dugger, 481 U.S. 393 (1987), a unanimous US Supreme Court — in an opinion authored by none other than the darling of the right, Justice Antonin Scalia — concluded that the very same defect in the very same Florida sentencing statutes rendered the death sentence imposed in that case unconstitutional.  Scalia’s opinion even cites the 11th Circuit’s Songer decision in support of his ruling.

Here’s the guts of the opinion.  It’s heavy on the legalese, but the bottom line is that Florida law at the time was obviously unconstitutional, and therefore long-standing Supreme Court precedent required the death sentence to be invalidated (bold emphasis mine).

We have held that in capital cases, “‘the sentencer'” may not refuse to consider or “‘be precluded from considering'” any relevant mitigating evidence. Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). See also Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). Certiorari was granted in the present case to consider petitioner’s contention that he was sentenced to death under a Florida statute that operated in a manner inconsistent with this requirement….

Petitioner argues that, at the time he was sentenced, [Florida law] prohibit[ed] the sentencing jury and judge from considering mitigating circumstances not specifically enumerated in the statute…. Because our examination of the sentencing proceedings actually conducted in this case convinces us that the sentencing judge assumed such a prohibition and instructed the jury accordingly, we need not reach the question whether that was in fact the requirement of Florida law. We do note, however, that other Florida judges conducting sentencing proceedings during roughly the same period believed that Florida law precluded consideration of nonstatutory mitigating circumstances. At least three death sentences have been overturned for this reason. See Songer v. Wainwright, 769 F.2d 1488 (CA11 1985) (en banc) (per curiam), cert. pending, No. 85-567 [that is the case Deval Patrick worked on –ed.]; Lucas v. State, 490 So.2d 943, 946 (Fla. 1986); Harvard v. State, 486 So.2d 537 (Fla.) (per curiam), cert. denied, 479 U.S. 863  (1986). We also note that the Florida Legislature has since removed the phrase “as enumerated [in the statutory list]” from the provisions requiring the advisory jury and the sentencing judge to consider mitigating circumstances. See Fla. Stat. 921.141(2)(b), (3)(b) (1985)….

[After reviewing the record, Justice Scalia concluded:] We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U.S. 1 (1986), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant’s troubled family history and emotional disturbance). As in those cases, however, the State is not precluded from seeking to impose a death sentence upon petitioner, “provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available.” Skipper, supra, at 8. 

We reverse the judgment and remand the case to the Court of Appeals. That court is instructed to remand to the District Court with instructions to enter an order granting the application for a writ of habeas corpus, unless the State within a reasonable period of time either resentences petitioner in a proceeding that comports with the requirements of Lockett or vacates the death sentence and imposes a lesser sentence consistent with law.

It is so ordered.

There’s yet another aspect of this case that our vaunted mainstream media has missed.  Columnists like Ginny Buckingham at the Herald and some dude named Jeffrey McMenemy out in Fitchburg are claiming that Patrick’s actions — which, as should be clear by now, were totally justified — made it more likely that Songer would eventually be released on parole.  WRONG!!  After Songer won his case in the 11th Circuit, the state held another sentencing hearing, and he was again sentenced to death.  At that point, Patrick’s involvement in the case had ended.  Songer’s second death sentence was also invalidated, this time by the Florida Supreme Court for reasons that had nothing to do with the issues that Patrick raised in the 11th Circuit.  So yes, Patrick got Songer’s first death sentence reduced.  But he had nothing to do with Songer’s second death sentence.

So can we please cut the bullshit on this issue now?  Deval Patrick was right.  Justice Scalia, along with noted flaming liberals Chief Justice William Rehnquist, Justice Sandra Day O’Connor, Justice Lewis Powell, and Justice Byron White, all of whom were on the Court at the time and none of whom like criminal defendants, agreed that he was right. 

And to answer the incredibly badly-worded question at the end of Kerry Healey’s attack ad on the Songer case: yes, Kerry, you bet I want a guy who stands up for the Constitution to be our Governor.  Just ask Antonin Scalia.

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