Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Danny Lee Jones was convicted of the premeditated first-degree murders of Robert Weaver and Tisha Weaver and the attempted premeditated murder of Robert Weaver’s grandmother Katherine Gumina. Arizona law at the time required the trial court to “impose a sentence of death” if it found “one or more” statutorily enumerated “aggravating circumstances” and “no mitigating circumstances sufficiently substantial to call for leniency.”
The trial court found three aggravating circumstances that applied to both murders: Jones committed multiple homicides; he was motivated by “pecuniary” gain; and the murders were “especially heinous, cruel or depraved.” The trial court found an additional aggravating circumstance with respect to Tisha Weaver’s murder as she was a young child. The trial court also concluded Jones established four mitigating circumstances: long-term substance abuse, drug and alcohol impairment at the time of the murders, head trauma and childhood abuse. The court concluded these mitigating circumstances were “not sufficiently substantial to outweigh the aggravating circumstances,” so it sentenced Jones to death.
The Arizona Supreme Court affirmed after “review[ing] the entire record” and “independently weighing all of the aggravating and mitigating evidence presented.”
Jones later sought state postconviction review on the theory defense counsel was ineffective, but the Arizona courts rejected Jones’s claims. Jones next filed a federal habeas petition in district court and reasserted his ineffective-assistance-of-counsel claims. The district court held an evidentiary hearing but ultimately concluded Jones couldn’t show prejudice because the additional information he presented “barely. . . alter[ed] the sentencing profile presented to the sentencing judge.”
The 9th Circuit Court of Appeals reversed, but the U.S. Supreme Court vacated that judgment and remanded for the 9th Circuit to determine whether, in light of Cullen v. Pinholster, it had been proper to consider the new evidence presented at the federal evidentiary hearing. On reconsideration, the 9th Circuit again granted habeas relief. The panel held it was permissible to consider the new evidence and concluded there was a “reasonable probability” “Jones would not have received a death sentence” if that evidence had been presented at sentencing.
Ten judges dissented from the denial of en banc review. One dissent, joined by eight judges, asserted the 9th Circuit panel flouted Strickland v. Washington by crediting “questionable, weak, and cumulative mitigation evidence” as “enough to overcome . . . weight[y] . . . aggravating circumstances.”
The Supreme Court held the 9th Circuit’s interpretation and application of Strickland was in error.
The high court noted to succeed on his ineffective-assistance-of-counsel claim, Jones must show that counsel provided a “deficient” performance that “prejudiced” him. Jones can show prejudice only if “there is a reasonable probability that, absent [counsel’s] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” “A reasonable probability is a probability sufficient to undermine confidence in the outcome. That requires a substantial, not just conceivable, likelihood of a different result.” To determine whether a prisoner satisfies this standard, the Supreme Court noted a court must “consider the totality of the evidence before the judge or jury”—both mitigating and aggravating.
But it found the 9th Circuit departed from these well-established rules in at least three ways. First, the high court found it failed adequately to take into account the weighty aggravating circumstances. Second, it applied a strange circuit rule that prohibits a court in a Strickland case from assessing the relative strength of expert witness testimony. Third, it held the district court erred by attaching diminished persuasive value to Jones’s mental health conditions. Contrary to the 9th Circuit’s suggestion, Eddings v. Oklahoma permits a sentencer to find mitigating evidence unpersuasive.
The Supreme Court reversed the judgment and remanded the case.
Justice Samuel Alito Jr. delivered the opinion of the court, in which Chief Justice John Roberts Jr. and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined. Justice Sonia Sotomayor filed a dissenting opinion which Justice Elena Kagan joined. Justice Ketanji Brown Jackson filed a dissenting opinion.
Sotomayor’s dissenting opinion notes agreement with the finding the 9th Circuit erred but stated “The majority unnecessarily goes further and engages in the reweighing itself.” Sotomayor’s dissent noted the record in this case is quite long and complex and contains “contested medical diagnoses and disputed allegations of abuse and trauma.” Sotomoyaor joined by Kagan note they would have vacated the judgment and remanded the case back to the 9th Circuit “to consider the full record in the first instance.”
Jackson’s dissent asserted the 9th Circuit’s analysis satisfied its obligations under Strickland. Jackson wrote, “I agree with [Sotomayor] that we are not the right tribunal to parse the extensive factual record in this case in the first instance. That is doubly true where the Ninth Circuit committed no legal error in reviewing that record to begin with.”
National Rifle Association of America v. Vullo
National Rifle Association sued Maria Vullo — former superintendent of the New York Department of Financial Services — alleging Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress the NRA’s gun-promotion advocacy. The 2nd Circuit Court of Appeals held Vullo’s alleged actions constituted permissible government speech and legitimate law enforcement.
DFS regulates insurance companies and financial services institutions doing business in New York, and has the power to initiate investigations and civil enforcement actions, as well as to refer matters for criminal prosecution. The NRA contracted with DFS-regulated entities — affiliates of Lockton Companies, LLC — to administer insurance policies the NRA offered as a benefit to its members, which Chubb Limited and Lloyd’s of London would then underwrite. In 2017, Vullo began investigating one of these affinity insurance policies — Carry Guard — on a tip passed along from a gun-control advocacy group. The investigation revealed Carry Guard insured gun owners from intentional criminal acts in violation of New York law, and that the NRA promoted Carry Guard without the required insurance producer license. Lockton and Chubb subsequently suspended Carry Guard. Vullo then expanded her investigation into the NRA’s other affinity insurance programs.
On Feb. 27, 2018, Vullo met with senior executives at Lloyd’s, expressed her views in favor of gun control and told the Lloyd’s executives “that DFS was less interested in pursuing” infractions unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA.”
On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” In the guidance letters, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organizations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.”
Vullo and New York Gov. Andrew Cuomo also issued a joint press release echoing many of the letters’ statements, and “urg[ing] all insurance companies and banks doing business in New York” to join those “that have already discontinued their arrangements with the NRA.”
DFS subsequently entered into separate consent decrees with Lockton, Chubb and Lloyd’s, in which the insurers admitted violations of New York’s insurance law, agreed not to provide any NRA-endorsed insurance programs (even if lawful), and agreed to pay multimillion dollar fines.
The U.S Supreme Court held the NRA plausibly alleged DFS violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy.
While a government official can share their views freely and criticize particular beliefs in the hopes of persuading others, they may not use the power of their office to punish or suppress disfavored expression.
In Bantam Books, Inc. v. Sullivan, the Supreme Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. The court explained the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech.
Although the defendant in Bantam Books, a state commission that blacklisted certain publications, lacked the “power to apply formal legal sanctions,” the coerced party “reasonably understood” the commission to threaten adverse action, and thus its “compliance with the [c]ommission’s directives was not voluntary.”
To reach this conclusion, the court considered things like: the commission’s authority, the commission’s communications and the coerced party’s reaction to the communications. The courts of appeals have since considered similar factors to determine whether a challenged communication is reasonably understood to be a coercive threat.
The Supreme Court vacated the judgment and remanded the case.
Justice Sonia Sotomayor delivered the unanimous opinion. Justices Neil Gorsuch and Ketanji Brown Jackson each filed a concurring opinion.
Cantero v. Bank of America, N. A.
The U.S. maintains a dual system of banking. Banks with federal charters — called national banks — are subject primarily to federal oversight and regulation. Banks with state charters are subject to additional state oversight and regulation. As relevant here, the National Bank Act expressly grants national banks the power to administer home mortgage loans.
When national banks make home mortgage loans, they often offer escrow accounts designed to protect both the bank and the borrower. Escrow accounts ensure the availability of funds to pay the insurance premium and property taxes on the borrower’s behalf. Escrow accounts operated by national banks are extensively regulated by the Real Estate Settlement Procedures Act of 1974. RESPA was designed to protect borrowers from “certain abusive practices” that were being carried on by national banks. But RESPA doesn’t mandate national banks pay interest to borrowers on the balances of their escrow accounts. New York state law is different. It provides that a bank “shall” pay borrowers “interest” on the balance held in an escrow account maintained in connection with a mortgage on certain real estate.
In this case, Alex Cantero and Saul Hymes and Ilana Harwayne-Gidansky obtained home mortgage loans from Bank of America, a national bank chartered under the National Bank Act. Both contracts required the borrowers to make monthly deposits into escrow accounts. Bank of America didn’t pay interest on the balances held in either escrow account, but informed the borrowers the New York interest-on-escrow law was preempted by the National Bank Act. The borrowers brought putative class-action suits in federal district court. The district court concluded nothing in the National Bank Act or other federal law preempted the New York law. The 2nd Circuit Court of Appeals reversed, holding that because the New York law “would exert control over” national banks’ power “to create and fund escrow accounts,” the law was preempted.
The U.S. Supreme Court held the 2nd Circuit failed to analyze whether New York’s interest-on-escrow law is preempted as applied to national banks in a manner consistent with the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the Supreme Court’s decision in Barnett Bank of Marion Cty., N. A. v. Nelson.
The high court vacated the judgment and remanded the case.
Justice Brett Kavanaugh delivered the unanimous opinion.
Editor’s note: this article was updated May 30 to incorporate a May 30 revision to National Rifle Association of America v. Vullo.