It's a death penalty case. In the Ninth Circuit. With a panel that consists of three Democratic appointees, none of whom have the name "Tallman" and one of whom has the name "Fletcher."
No way the panel's going to affirm the death sentence, right?
Admittedly, this is not your typical death penalty case. For one thing, the defendant confessed to the murders. Not only to the police, but at trial as well. Moreover, not only did he confess, but he didn't offer any defense at all. Indeed, he said that he wanted to be sentenced to death, and told the sentencing judge "that he considered himself to be a violent person; that he was uninterested in rehabilitation; that he felt no remorse; and that part of the reason he killed the two men was that he had always had 'kind of a morbid fascination to find out what it would be like to kill somebody.'"
Well, not surprisingly, the judge obliged. Given these facts, even when the defendant later changed his mind (post-sentencing) and appealed, it's perhaps not surprising that his death sentence gets affirmed.
Mind you, there's some stuff on the other side too, which also makes this an unusual case. For example, Montana offered Smith a plea bargain that would have made him eligible for release in a little under 18 years -- and all he'd have to do is testify truthfully, like he did at trial anyway. So proving "prejudice" from any errors that might have been made isn't as tough as in a lot of other cases. Plus, you've got the facts that the defendant (1) was deeply depressed when he decided to "volunteered" to be killed, (2) had been in solitary confinement for some time, and (3) had received death threats from other inmates and believed that he would be killed in prison. Not to mention that even the majority opinion concludes that the defendant's lawyer "failed to properly investigate possible defenses to the death sentence and failed to present those possible defenses" to the defendant, and that these failures made defendant's representation ineffective as a matter of law.
So that weighs heavily on the other side. Which is why Judge (Betty) Fletcher dissents.
Nonetheless, you've still got a panel of three not-conservative judges on the Ninth Circuit affirming a death penalty. Not something you see every day.
P.S. - Let's all learn from defendant's mistake here. Before committing the murders, he felt ?messed up emotionally? and felt like he "had to get away from the environment that [he] was in in order to get calmed down.? Makes sense. So he decided to go to Mexico. Okay, I can understand that. But if you're indeed "emotionally messed up," my strong sense is that it's a good idea not to "tak[e] between thirty to forty hits of LSD daily." That's not going to help. At all. And may even help contribute, as here, to some really, really poor decisions.
P.P.S. - One final note -- without commentary -- from the last paragraph of the majority opinion. The murders happened 27 years ago, and the decision to "volunteer" for death was similarly long ago. "By all accounts, Smith has reformed his life. He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions. However, consideration of these issues are beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch. On the legal issues presented to us, we affirm the judgments of the district court denying Smith?s petition for a writ of habeas corpus.
