# Lankford v. Idaho/Dissent Scalia

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Scalia
Justice SCALIA, with whom Chief Justice REHNQUIST, Justice WHITE, and Justice SOUTER join, dissenting.
The Court holds that Lankford's due process rights were violated because he did not receive adequate notice that his sentencing hearing could result in the death penalty. I disagree.
Lankford knew that he had been convicted of first-degree murder, and Idaho Code § 18-4004 (1987) clearly states that "every person guilty of murder of the first degree shall be punished by death or by imprisonment for life." At arraignment the presiding judge, after reading aloud the substantive code provisions and describing the charges, told Lankford: "[T]he maximum punishment that you may receive if you are convicted on either of the two charges is imprisonment for life or death. Do you understand . . . ?" 7 Record 15. Lankford stated that he did. Ibid.
The Court's theory is that the unquestionable constitutional adequacy of this notice was destroyed by the judge's later order that the State indicate its intentions with regard to sentencing and the prosecutor's consequent statement that the State would not seek the death penalty. That theory would perhaps be correct if there was any reasonable basis for Lankford or his counsel to believe that the sentence could not exceed the prosecutor's recommendation. But plainly there was not.
The Idaho death penalty statute places full responsibility for determining the sentence upon the judge. It directs that "[w]here the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance." Idaho Code § 19-2515(c) (1987) (emphasis added). Moreover, the finding of a statutory aggravating circumstance is not dependent upon any presentation by the prosecution. Under Idaho law, "[e]vidence admitted at trial shall be considered and need not be repeated at the sentencing hearing." Idaho Code § 19-2515(d). Anyone familiar with Lankford's case and Idaho law should have recognized immediately that the judge would necessarily find at least one statutory aggravating circumstance, for the jury's guilty verdict on the two separate murder counts established that, "[a]t the time the murder was committed the defendant also committed another murder," Idaho Code § 19-2515(g)(2). Thus the judge would be bound by law, see Idaho Code § 19-2515(e), to weigh all mitigating and aggravating circumstances and to impose the death penalty unless the former outweighed the latter. Moreover, since an aggravating circumstance would necessarily have been found, in the event that Lankford did not receive the death penalty the court would be required to "detail in writing its reasons" for giving a lesser sentence. Ibid. No provision of the Idaho Code suggests that these duties placed upon the judge by § 19-2515 dissolve upon the State's recommending a lower sentence.
Not only is Idaho statutory law clear on its face, but Idaho case law confirms it. In State v. Rossi, 105 Idaho 681, 672 P.2d 249 (App.1983), the defendant claimed an abuse of discretion when the trial court sentenced him to a term of imprisonment twice as long as the prosecutor had recommended. The Idaho Court of Appeals stated:
"Our Supreme Court has . . . held that no prejudicial error resulted from a court's refusal to follow the [sentencing] recommendation of the jury. We hold that a trial court is also not bound by a sentence recommendation made by the state. . . . The state's recommendation to the trial court is purely advisory." Id., at 682, 672 P.2d, at 250 (emphasis added).
Rossi was not a capital case, but nothing in any provision of the Idaho Code or in Idaho case law suggests that the rule in capital cases would be any different. Indeed, in State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), the Idaho Supreme Court found no error where a defendant was not informed whether the State would seek the death penalty, because "[w]hether the state would urge the maximum penalty or not was immaterial to the question of adequate notice to appellant that it was possible." Id., at 413, 631 P.2d, at 195.
The Court nevertheless holds that Lankford reasonably concluded from the judge's September 6 order and the State's response that the death penalty did not remain an issue. "The presentencing order," the Court says, ". . . was comparable to a pretrial order limiting the issues to be tried." Ante, at 120. To say that is simply to assume the conclusion. Assuredly, despite the clarity of Idaho law, if the judge explicitly limited the issues to be considered at sentencing, or in some other way indicated that he would not exceed the prosecutor's recommendation, Lankford would have a case. But was it reasonable to view the September 6 order as "a pretrial order limiting the issues to be tried"? A pretrial order having such preclusive effect is typically entered pursuant to a rule or statute that says it will be preclusive. See, e.g., Fed.Rule Civ.Proc. 16(e). When an order is not entered pursuant to such a provision, as was the case here, one would expect the order itself to specify its preclusive effect, if any. But the present order said only that the prosecutor must state his intentions. It seems to me that the absolute limit of preclusion even inferable from that order was that the prosecutor, if he did not express the intention to seek the death penalty, would not be permitted to argue for it at the sentencing hearing. The consequence of that, of course, would be that the death penalty would be less likely to be imposed, since no one would be pressing it upon the judge and defense counsel's arguments against it would go unanswered. But neither explicitly in the order, nor as an inference of the order, nor even as a consequence of an inference, does it appear that the judge would be entirely precluded from imposing the death penalty. There was simply no basis for thinking that.
But perhaps it could be argued that, even though the judge was not legally bound by the prosecutor's recommendation against the death penalty, his entry of the order indicated he intended (contrary to Idaho law) to be bound, and that he should be held to that indicated intent by a sort of promissory estoppel. Even as a factual matter, that argument has no support. If the judge had entered the order on his own initiative, one might think "Why else would he demand to know the State's position in advance unless he intended to accept it?" In fact, however, it was not the judge but defense counsel who asked that the State make its intentions clear.
"MR. LONGETEIG: I wonder could the court fix a time in which the state would file a notice of its intention in respect to capital punishment. This would materially, depending on what he does, alter our course of action in this matter.
"THE COURT: I don't know that there is any provision that the state notify.
think it would be a matter of the discretion of the court. But I would request that.
"THE COURT: Oh, well, Mr. Albers apparently doesn't have any objections to your request. He's indicated that, I think, as soon as he knows for sure what he wants to do, he'll tell you.
"MR. LONGETEIG: That's satisfactory.
"MR. ALBERS: And that will certainly be in plenty of time before the sentencing." 7 Record 55.
Not only did the judge give no indication that he wanted the State's recommendation because he would automatically accept it, but to the contrary he plainly indicated that, regardless of what the recommendation was, the death penalty would be at issue. Immediately following the colloquy quoted above, the record continues as follows:
"THE COURT: There obviously needs to be inquiry pursuant to 19-2515 as to the statutory aggravating circumstances that may exist regardless whether or not the state intends to pursue the death penalty." Id., at 56.
The reference to a statutory "inquiry" is to Idaho Code § 19-2515(d) (1987), which provides that "[i]n all cases in which the death penalty may be imposed, the court shall, after conviction, order a presentence investigation . . . and shall thereafter convene a sentencing hearing for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. . . ." (Emphasis added). Pursuant to that section the judge did order a presentence investigation—a step not required (or even specifically contemplated) by the Code except in death penalty cases. And the trial judge's reference to statutory aggravating circumstances itself shows that the death penalty remained at issue, for only as to that penalty are qualifying aggravating circumstances specifically listed, see Idaho Code § 19-2515(g).
In sum, it was clear that the death penalty remained at issue in the sentencing hearing, and there is no basis for the contention that the judge "misled" Lankford to think otherwise. Since that is so, today's decision creates a vast uncertainty in the law. If defendants are no longer to be held to knowledge of the law, or if their unreasonable expectations are henceforth to be the criteria of the process which is their due, the lawfulness and finality of no conviction or sentence can be assured. The defense created by the Court today will always be available, its success to be limited by factors we will presumably seek to identify in a series of future cases that will undertake the impossible task of explaining how much ignorance of the law, or how much unreasonableness of expectation, is too much.
The Court believes, and I have assumed up to this point, that Lankford and his counsel did detrimentally rely upon the State's declaration, i.e., that they did believe, albeit unreasonably, that the death penalty was foreclosed as an option at sentencing. It is far from clear, however, that that was so, and I do not believe that Lankford has carried the burden of establishing it.
The reality that the death penalty was not foreclosed as a matter of law was so clear—from the Idaho statutes, from the case law, and even from the judge's explicit statement that the death-sentence "inquiry" would have to be held—that it is difficult to believe counsel thought otherwise. Counsel clearly did not believe that the prosecutor's recommendation established the permissible maximum with regard to a sentence less than death. For though the prosecutor, who spoke first at the sentencing hearing, recommended the minimum sentence of life imprisonment with possibility of parole in 10 to 20 years, Lankford's counsel argued specifically against life imprisonment without possibility of parole. 8 Record 329. It is conceivable, I suppose, that counsel thought the judge possessed legal authority to exceed the prosecutor's recommendation in that respect but not in respect of imposing death; but the possibility of baseless belief that Idaho law contained such peculiar asymmetry is surely remote.
There remains, of course, the possibility that counsel genuinely (though unreasonably) believed, because of the September 6 order, that the death penalty had been precluded not in law, but as a matter of the judge's intentions. But there is some indication that even this was not so. The judge, in his lengthy statement at the end of the sentencing hearing—concluding with the announcement that he would not sentence immediately but would take the matter under advisement—stated that the available sentences included "[f]or example, a fixed term of 40 years or death or a fixed life sentence. So there are a great number of possibilities available to this Court." Id., at 330 (emphasis added). If Lankford's counsel believed that the defense had been given assurance that the death penalty was (at least as a practical matter) out of the case, one would have expected a shocked objection at this point. None was made—though counsel was aggressive enough in objecting to another portion of the judge's concluding statement, two pages later in the transcript, that the judge interrupted with "Counsel, I'm not here to argue with you." Id., at 332.
The only evidence supporting detrimental (albeit unreasonable) reliance is the fact that counsel's presentation at the sentencing hearing did not specifically address the death penalty. That is not terribly persuasive evidence, since all the arguments made against a life sentence or a minimum term of more than 10 years would apply a fortiori against a sentence of death. In any event, counsel's presentation was entirely consistent with (1) belief that the death penalty was not entirely ruled out, but simply an overwhelmingly unlikely possibility, plus either (2) a tactical decision not to create the impression, by arguing the point, that that option was even thinkable, or (3) sheer negligence. If it was the last, Lankford may have a claim for ineffective assistance of counsel, which can be raised in a petition for habeas corpus. But he has not carried the burden of sustaining the claim made here.
Because Lankford has not established that his counsel had any basis reasonably to believe that the death penalty was, either legally or as a practical matter, out of the case—and indeed he has not even established that his counsel unreasonably believed that to be so—we have no cause to reverse the judgment of the Supreme Court of Idaho. In doing so, we seemingly adopt the topsy-turvy principle that the capital defendant cannot be presumed to know the law, but must be presumed to have detrimentally relied upon a misunderstanding of the law or a misinterpretation of the judge. I respectfully dissent.

## Notes

* ↑ The majority, ante, at 115 n. 7, notes that "the judge's comment was made prior to the State's response." I fail to see how that is relevant. The court's statement was that the death penalty procedures would be followed "whether or not the state intends to pursue the death penalty." 7 Record 56 (emphasis added). As the Court also notes, ante, at 115 n. 7, Lankford obtained new counsel after this discussion. However, I think the knowledge of the first counsel (Mr. Longeteig) should be imputed to the second counsel (Ms. Fisher). It was obviously Ms. Fisher's duty to inform herself of all relevant circumstances, including the knowledge of Mr. Longeteig. That should not have been difficult, as the judge specifically ordered Mr. Longeteig to remain in the case and be at Ms. Fisher's "beck and call," 8 Record 25, to assist her in preparing for sentencing. If Ms. Fisher failed to ask him about the death penalty that cannot be labelled a due process violation attributable to the State.
* ↑ Evidence at trial also established that the camping couple whom the Lankford brothers killed offered no provocation or resistance, that their skulls were brutally smashed while they were kneeling in a position of submission, that they were driven dead or mortally injured—into a remote area where their bodies were hidden under branches and other debris and remained undiscovered until three months later. State v. Lankford, 113 Idaho 688, 691-692, 747 P.2d 710, 713 (1987). Thus, reasonable defense counsel would also have anticipated that a sentencer might well find additional statutory aggravating circumstances, see Idaho Code § 19-2515(g)(5) (1987) (aggravating circumstance that the murder was "especially heinous, atrocious or cruel, manifesting exceptional depravity"); Idaho Code § 19-2515(g)(6) (aggravating circumstance that "the defendant exhibited utter disregard for human life").
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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