NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.1 General Due Process Concerns
               4.1  General Due Process Concerns
                      4.1.1  Rights Regarding Evidence Presented At Sentencing
                      4.1.2  Right To Speak
                      4.1.3  Notice Of Death Sentence Possibility
                      4.1.4  Right To Confront and Cross-Examine Witnesses
                      4.1.5  Length Of Sentencing Proceeding
                      4.1.6  Defendant’s Appearance Before Jury: Jail Clothing And Restraints
                      4.1.7  Sentencer Reliance On Undisclosed Information
                      4.1.8  Right To Be Present At Verdict
                      4.1.9  Competency at Penalty Phase

In Gardner v. Florida, 430 U.S. 349 (1977), the Supreme Court established that a capital sentencing proceeding must comply with due process, just as the trial itself, because it is a critical stage in the criminal proceeding. The Court has also made various specific findings of a defendant’s rights at sentencing based on the due process clause.

Gardner v. Florida, 430 U.S. 349, 358 (1977) (stating capital sentencing proceedings must satisfy due process; no due process where petitioner sentenced to death on basis of information of which he had no opportunity to deny or explain).

Fetterly v. Paskett, 15 F.3d 1472, 1482 (9th Cir.) (citing Gardner, stating sentencing must satisfy due process; defendant has legitimate interest in character of procedure which leads to imposition of sentence, even if defendant may have no right to object to particular result of sentencing proceedings), cert. denied, 513 U.S. 914 (1994).

Beth S. Brinkman, Note, The Presumption of Life: A Starting Point for a Due Process Analysis of Capital Sentencing, 94 Yale L.J. 351 (1984) (reviewing Supreme Court’s due process treatment of capital cases, focusing on sentencing, and arguing that due process analysis of capital sentencing system should include presumption of life, analogous to presumption of innocence).

In Gardner v. Florida, the Supreme Court established that a defendant cannot be sentenced to death based on confidential evidence presented at sentencing that the defendant had no opportunity to deny or explain. In Skipper v. South Carolina, 476 U.S. 1 (1986), the Court confirmed that this rule applies not only in situations where the evidence was not disclosed but also where the defendant was prevented from rebutting the information. In Gray v. Netherland, 518 U.S. 152 (1996), the Supreme Court held that while a capital defendant at sentencing has a due process right to notice of all of the charges against him or her, there is no constitutional right to notice of the evidence which the state plans to use to prove the charges.

Gray v. Netherland, 518 U.S. 152 (1996) (holding, while capital defendant at sentencing has right to notice of charges against him, there is no constitutional right to notice of evidence which state will use to prove charges; distinguishing Gardner as involving confidential information kept from defendant altogether).

Romano v. Oklahoma, 512 U.S. 1 (1994) (holding introduction at sentencing of defendant’s prior conviction and death sentence not violation of due process because instructions did not offer jury any means to give effect to such evidence, and other evidence presented by state was sufficient to justify imposition of death sentence).

Skipper v. South Carolina, 476 U.S. 1 (1986) (stating sentencer cannot be precluded from considering any mitigating evidence defendant offers as basis for sentence less than death).

Gardner v. Florida, 430 U.S. 349 (1977) (holding judge’s consideration of confidential sentence reports submitted but not available to defendant violated due process: defendant could not be sentenced based on evidence which he had no opportunity to deny or explain).

Bonin v. Vasquez, 794 F. Supp. 957, 977 (C.D. Cal. 1992) (holding that barring petitioner’s co-counsel from presenting argument at the penalty phase after lead counsel presented argument did not violate due process), aff’d, 59 F.3d 815 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996).

Ables v. Scott, 73 F.3d 591 (5th Cir.) (stating criminal defendant entitled to notice and due process at sentencing, to a “lesser degree than at trial”), cert. denied, 517 U.S. 1198 (1996).

Russell v. Lynaugh, 892 F.2d 1205 (5th Cir. 1989) (holding admission in guilt phase of evidence of robbery conviction which was later reversed on appeal did not undermine fundamental fairness of sentencing phase), cert. denied, 501 U.S. 1259 (1991).

Steven P. Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phases of Capital Trials, 93 Colum. L. REV. 1249 (1993) (arguing that introduction of extraneous, unadjudicated offenses at sentencing phase of capital trial violates due process and should be barred or severely restricted).

A.J. Stephani, Dead Again: Prior Death Sentences in Capital Sentencing Procedures, 64 U. Cin. L. Rev. 249 (1995) (analyzing Romano and agreeing with Romano dissent).

The Ninth Circuit has held that a capital defendant has a due process right to speak at sentencing.

Boardman v. Estelle, 957 F.2d 1523 (9th Cir.) (holding where defendant, either unrepresented or represented by counsel, makes an affirmative request to speak at the sentencing phase, denial of that request is a denial of due process), cert. denied, 506 U.S. 904 (1992).

Caren Myers, Note, Encouraging Allocution at Capital Sentencing: A Proposal for Use Immunity, 97 Colum. L. Rev. 787 (1997) (addressing question of detriment to defendant from speaking at sentencing phase, and advocating use immunity as solution).

The Supreme Court has held that the imposition of the death penalty where the state has given notice that it will not recommend death is a violation of due process.

Lankford v. Idaho, 500 U.S. 110 (1991) (holding petitioner’s due process rights were violated where trial court imposed death penalty despite state’s notice that it would not recommend the death penalty).

In Williams v. New York, 337 U.S. 241 (1949), the Supreme Court held that the sentencing judge’s consideration of information contained in a presentence report did not violate due process because a defendant does not have the right to confront and cross-examine witnesses at sentencing. However, in light of Gardner, the Ninth Circuit has construed Williams to stand for the proposition that a sentencing judge can rely on information provided by non-testifying witnesses when the defendant is aware of and has the opportunity to rebut, deny, or explain, the submitted information. Ortiz v. Stewart, 149 F.3d 923, 937 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999).

Gardner v. Florida, 430 U.S. 349 (1977) (distinguishing Williams, basing due process violation on confidential nature of information rather than on its hearsay character).

Specht v. Patterson, 386 U.S. 605 (1967) (reaffirming Williams but declining to extend it to non-capital case).

Williams v. New York, 337 U.S. 241 (1949) (holding defendant has no due process right to confront and cross-examine witnesses during sentencing proceeding).

Ortiz v. Stewart, 149 F.3d 923, 937 (9th Cir. 1998) (discussing Williams and Gardner, holding no due process violation where sentencing judge considered evidence offered by defendant’s wife at her trial to rebut defendant’s mitigation evidence, reasoning that the defendant had an opportunity to rebut wife’s testimony), cert. denied, 526 U.S. 1123 (1999).

United States v. Petty, 992 F.2d 1015 (9th Cir. 1993) (following Williams, holding confrontation clause does not apply at capital sentencing to bar admission of hearsay evidence; dissent arguing capital sentencing does entitle defendant to right to confront and cross-examine).

Bassette v. Thompson, 915 F.2d 932, 939 (4th Cir. 1990) (suggesting defendants in capital cases do not have right to confront and cross-examine at sentencing all witnesses under due process), cert. denied, 499 U.S. 982 (1991).

United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir. 1990) (holding use of hearsay at sentencing did not deny defendant right of confrontation).

Proffitt v. Wainwright, 685 F.2d 1227, 1255 (11th Cir. 1982) (distinguishing Williams and holding trial court erred by refusing to allow defense counsel to cross-examine prosecution expert witness at sentencing hearing; reasoning that due process requires cross-examination–at least where necessary to ensure the reliability of the witnesses’ testimony).

Christopher K. Tahbaz, Note, Fairness to the End: The Right to Confront Adverse Witnesses in Capital Sentencing Proceedings, 89 Colum. L. Rev. 1345 (1989) (analyzing Supreme Court and state court approaches, including Eighth Amendment and due process, to defendant’s right to confront and cross-examine witnesses in capital sentencing phase).

Although the Supreme Court has not addressed the issue, the Eleventh Circuit has held that due process does not require a sentencing proceeding to be a specific length.

Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987) (holding due process does not require sentencing proceeding to be specific length, rather, the proceeding is consistent with due process if not fundamentally unfair).

The presumption of innocence prevents a court from compelling a defendant to wear identifiable prison clothing at trial. The presumption of innocence does not apply to a sentencing proceeding, however, and the Ninth Circuit and other circuits have held that requiring a defendant to wear prison clothing at sentencing does not offend due process.

The Supreme Court has held that courts may, at times, compel a defendant to wear restraints. In Illinois v. Allen, 397 U.S. 337 (1970), the Court held that although “inherently prejudicial” to a defendant, security interests may warrant shackling a defendant at trial. However, shackling must be done only as a “last resort.” Furthermore, the Court held in Deck v. Missouri, 125 S. Ct. 2007 (2005), that the Constitution forbids the use of visible shackles during the penalty phase of a capital case, unless that use is “justified by an essential state interest”–such as courtroom security–specific to the defendant on trial. The Ninth Circuit has held that due process requires the trial judge to find compelling circumstances of courtroom security and to pursue less restrictive alternatives before imposing such physical restraints. Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.), cert. denied, 498 U.S. 832 (1990). According to Wilson v. McCarthy, 770 F.2d 1482 (9th Cir. 1985), shackling in the Ninth Circuit is proper where there is a serious threat of escape or danger to those in and around the courtroom, or where courtroom disruption is likely if the defendant is not restrained. These limitations on shackling exist at sentencing proceedings as well.

Deck v. Missouri, 125 S. Ct. 2007 (2005) (holding that Constitution forbids use of visible shackles during penalty phase, just as it does during guilt phase, unless that use is “justified by an essential state interest” specific to the defendant on trial).

Estelle v. Williams, 425 U.S. 501 (1976) (holding presumption of innocence prohibits trial court from compelling defendant to wear identifiable prison clothes at trial, without violating due process).

Illinois v. Allen, 397 U.S. 337 (1970) (holding public’s interest in security may warrant use of shackles, but only as “last resort”).

Rhoden v. Rowland, 172 F.3d 633 (9th Cir. 1999) (holding petitioner, who was unjustifiably shackled during entire trial, entitled to habeas relief where five jurors saw shackles and case involved violent crimes and disputed evidence).

Rich v. Calderon, 170 F.3d 1236 (9th Cir.) (holding no constitutional error resulted from shackling capital defendant where record devoid of any indication that jury saw shackles), amended and superseded on denial of reh’g, 187 F.3d 1064 (9th Cir. 1999).

Villafuerte v. Stewart, 111 F.3d 616, 628 (9th Cir.) (holding no constitutional violation where defendant appeared in jail clothing on first day of trial, because civilian clothes were available but rejected and defendant volunteered to jury that he had been in jail for five months), cert. denied, 522 U.S. 1079 (1998).

Ainsworth v. Calderon, 152 F.3d 1223 (9th Cir. 1998) (finding no due process violation where up to six armed guards in courtroom during trial).

Duckett v. Godinez, 109 F.3d 533 (9th Cir.) (holding defendant’s appearance before sentencing jury in shackles is error, but harmless error where shackles not visible to jury), cert. denied, 522 U.S. 848 (1997).

Logan v. Gomez, 81 F.3d 169 (9th Cir. 1996) (finding shackling of defendant at trial prejudicial, remanding for evidentiary hearing to determine if error was harmless).

Hartman v. McCarthy, 74 F.3d 1245 (9th Cir. 1996) (concluding no compelling need for shackles, but harmless error because state had strong case, defendant’s dangerousness was not an issue, and jury knew defendant was an inmate).

Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995) (holding petitioner’s due process rights were violated by being required to appear in shackles at sentencing because no evidence of disruptive behavior; noting that requiring defendant to wear prison clothes during sentencing does not violate due process, citing Estelle v. Williams), cert. denied, 517 U.S. 1158 (1996).

Morgan v. Bunnell, 24 F.3d 49 (9th Cir. 1994) (holding shackling justified on facts, for courtroom security).

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.) (holding shackling defendant during trial not due process violation because defendant’s conduct justified restraint and less restrictive alternatives were attempted and failed), cert. denied, 512 U.S. 1229 (1994).

Castillo v. Stainer, 997 F.3d 669 (9th Cir.) (describing two-step process necessary before shackles may be used at trial), cert. denied, 510 U.S. 1014 (1993).

Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.) (stating Ninth Circuit precedent that “court must be persuaded by compelling circumstances that some measure was needed to maintain security of courtroom,” and that court must “pursue less restrictive alternatives before imposing physical restraints”), cert. denied, 498 U.S. 832 (1990).

Spain v. Rushen, 883 F.2d 712, 716, 720 (9th Cir. 1989) (holding defendant has constitutional right to appear before jury without shackles, absent compelling circumstances), cert. denied, 495 U.S. 910 (1990).

Wilson v. McCarthy, 770 F.2d 1482 (9th Cir. 1985) (addressing limits on right to appear before jury free of shackles).

Williams v. Calderon, 41 F. Supp. 2d 1043 (C.D. Cal. 1998) (finding no evidence to justify leg chain and handcuffs, but finding error harmless under Brecht).

United States v. Stewart, 20 F.3d 911, 916 (8th Cir. 1994) (holding that when circumstances permit shackling defendant during trial, compelling defendant also to wear prison clothing is not inherently prejudicial because prisoner status is already apparent to jury).

Marquez v. Collins, 11 F.3d 1241 (5th Cir.) (holding capital defendant must not be shackled before jury unless restraint is necessary to protect safety of trial participants or sanctity of trial itself; holding shackling at trial not due process violation, on facts), cert. denied, 513 U.S. 881 (1994).

Elledge v. Dugger, 823 F.2d 1439 (11th Cir.) (holding new capital sentencing hearing required where defendant forced to appear before jury in shackles and state failed to establish shackling was necessary and trial court failed to consider less restrictive alternatives or give defendant an opportunity to rebut charges that he [or she] was a security threat), withdrawn in part, 833 F.2d 250 (11th Cir. 1987), and cert. denied, 485 U.S. 1014 (1988).

In Gardner v. Florida, the Supreme Court held that a death sentence based in part on a confidential presentence report given to the trial judge but not to the defense was unconstitutional because it was based on information which the defendant had no opportunity to deny or explain. Thus, under Gardner and its progeny, a capital defendant must be permitted to see and respond to any evidence or argument on which the death sentence might be based.

Simmons v. South Carolina, 512 U.S. 154 (1994) (citing Gardner, holding that where a defendant’s future dangerousness is at issue, and state law prohibits defendant’s release on parole, due process requires that the sentencing jury be informed that defendant is parole ineligible; to extent that jury’s potential belief that defendant was parole eligible may have affected its deliberations, defendant would be sentenced to death on basis of information which he or she had no opportunity to deny or explain).

Gardner v. Florida, 430 U.S. 349 (1977) (holding Eighth and Fourteenth Amendments bar reliance by sentencer on confidential presentence report; “full disclosure of the basis for the death sentence” is required).

McKenzie v. McCormick, 27 F.3d 1415 (9th Cir. 1994) (distinguishing Gardner in upholding death sentence issued after meeting between prosecutor and judge after verdict and before sentencing because no evidence that meeting, or substance of it, affected sentencing decision), cert. denied, 514 U.S. 1033 (1995).

Paradis v. Arave, 20 F.3d 950 (9th Cir. 1994) (holding private letter from co-defendant and in camera statements to judge not Gardner violation because no showing that judge considered them in sentencing), cert. denied, 513 U.S. 1117 (1995).

Clark v. Ricketts, 958 F.2d 851 (9th Cir.) (holding no constitutional violation where judge had presentence report before him at sentencing phase where evidence showed that judge’s finding that defendant lacked remorse was based on evidence at trial and not information contained in presentence report), cert. denied, 506 U.S. 838 (1992).

Lusk v. Singletary, 965 F.2d 946 (11th Cir. 1992) (holding court’s failure to ensure defendant personally reviewed presentence report not a due process Gardner violation), cert. denied, 508 U.S. 920 (1993).

Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989) (holding judge’s ex parte visit to prison death row constitutes Gardner violation, but harmless error), cert. denied, 496 U.S. 929 (1990).

Lawrence E. Jacobs, Note, Ex Parte Information and the Appellate Review of Capital Sentences, 60 N.Y.U. L. Rev. 104 (1985) (reviewing Gardner, concluding use of ex parte information in appellate review of death sentence is unconstitutional).

A defendant has a due process right to be present in court when the presence bears a reasonably substantial relation to the opportunity to defend but not where the presence would be useless. Snyder v. Massachusetts, 291 U.S. 97 (1934). The Supreme Court, however, has not specifically addressed the constitutionality of a capital defendant’s absence when a jury announces sentence. In Rice v. Wood, 77 F.3d 1138 (9th Cir.), cert. denied, 519 U.S. 873 (1996), a case in which the state conceded that petitioner’s absence from the reading of her capital sentencing verdict amounted to constitutional error, the Ninth Circuit held that the error was not structural error and upheld the verdict under a harmless error analysis.

Rice v. Wood, 77 F.3d 1138 (9th Cir.) (holding trial court’s acceptance of jury’s death verdict in defendant’s absence was harmless error), cert. denied, 519 U.S. 873 (1996).  

Campbell v. Wood, 18 F.3d 662 (9th Cir.) (stating felony defendant has fundamental right to be present at every stage of trial; right may be waived if voluntary, knowing, and intelligent), cert. denied, 511 U.S. 1119 (1994).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004) (affirming denial of a habeas petition in a capital case, the court held that, although petitioner’s Sixth Amendment right to a fair trial would have been implicated if he had actually been incompetent at penalty phase of trial, the trial court did not err in not sua sponte holding a competency hearing at the penalty phase where there was no substantial evidence of incompetency, and the petitioner was not actually incompetent; thus holding district court did not err in denying an evidentiary hearing on these issues, and counsel was not ineffective in failing to request a competency hearing), cert. dismissed, 126 S. Ct. 410 (2005).