Robert Gottsfield 2013-09-19 00:48:53
Jury Must Decide Eligibility for Death Even With a Plea to Capital Charges; What Should Be in the Plea Although well-known to capital attorneys, those not involved in such cases may not realize that even where a defendant pleads to capital charges, he must be advised that a jury must determine his eligibility for the death penalty. This is the mandate of such cases as Ring v. Arizona, 536 U.S. 584, 607-09 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 496-97 (2000). And see a recent note on the subject, Sarah Breslow, Pleading Guilty To Death: Protecting The Capital Defendant’s Sixth Amendment Right To a Jury Sentencing After Entering A Death Plea, 98 Cornell L. Rev 1245 (July 2013). Usually a plea to first degree murder involves the state taking death as an option off the table, which has often induced the plea in the first place. However there are instances where no offer is extended and the defendant pleads straight up to the capital charges. In that situation defendant must be told that a jury will make the life and death decision. To be sure where a capital defendant pleads straight up to capital charges and death is still an option under the plea, he can agree, assuming the state and the judge have no objection, to have a judge conduct the penalty sentencing stage. To do this the judge must obtain a knowing, intelligent and voluntary waiver of a jury trial at the penalty stage. At the plea hearing, in that instance, the court must obtain defendant’s signature to a waiver of trial by jury form. In addition the defendant must be advised the state must prove the existence of at least one aggravating circumstance beyond a reasonable doubt to a unanimous jury before he would be eligible for the death penalty; that if the jury determined no aggravator was proven he would not be eligible for the death penalty; that he would have the right to present mitigation evidence to the jury in an effort to persuade the jury that death is not the appropriate sentence and that natural life or life with the possibility of release after 25 years should be imposed instead. He must be told that by waiving a jury trial he is giving up certain constitutional rights; that he has the right to keep a plea of not guilty, to have a trial by jury, and to be represented by counsel at the jury trial; that he is presumed innocent and could not be found guilty at trial unless the state proved to a jury, beyond a reasonable doubt, that he is guilty and all the jurors have to agree unanimously as to his guilt. The trial court must be certain defendant understands that by waiving the jury he is giving up the right to have a jury determine any aggravating and mitigating circumstances and whether any mitigating circumstances are sufficiently substantial to call for a life sentence on the murder charge. He is giving up his right to have a jury determine whether a life sentence or a death sentence is appropriate on his first degree murder charge. He will be permitting the trial judge to make all decisions the jury would normally make, including the decisions on guilt or innocence, the existence of aggravators and the penalty of life or death. If there are other charges the trial court must obtain his waiver of a jury trial on the issue of guilt and the existence of aggravators relating to such other charges. The Arizona Supreme Court recently discussed in State v. Rose, 231 Ariz. 500, 297 P. 3d 906 (2013) what else should be in the judge’s colloquy with the defendant, where there is a plea of guilty in a capital case without a plea agreement. Phoenix Police Officer George Cortez Jr. was responding to the report of a crime in progress where defendant was attempting to cash a forged check at a check cashing store. With one hand in handcuffs, the defendant was able to grab his gun, shoot the officer and run. Officer Cortez died at the scene. Rose was arrested the next morning. Rose pleaded guilty, without a plea agreement, to first degree murder of a law enforcement officer, first degree felony murder, and eight other noncapital felonies, but where the penalty stage was before a jury which sentenced defendant to death. The Supreme Court set forth the general rule [Boykin v. Alabama, 395 U.S. 238, 243-44 (1969)] that when accepting a guilty plea in a death case the trial court must ensure that defendant understands: (1) the nature of the charges, (2) the nature and range of possible sentences, including any special conditions, (3) the constitutional rights waived by pleading guilty, (4) the right to plead not guilty, and (5) that the right to appeal is waived if the defendant is not sentenced to death. The Supreme Court advised as part of the colloquy under Rule 17.2, the trial court should establish, through avowal of defense counsel, and acknowledgment of defendant, that the nature of the offense, the intent required to commit it and the consequences of pleading guilty have been discussed with him. It is important to establish that defendant does not dispute the factual basis of the charges. At the same time the court makes clear there is no duty to advise defendant of each specific element of his crimes, to explain the distinction between first and second degree murder, or obtain a waiver of defenses alleged including a guilty except insane defense. There is no need for the trial court to advise defendant of any defenses suggested by the record. Finally the court notes that while defendant must be advised that he is waiving his right of appellate review with respect to noncapital cases [A.R.S. 13-4033 (B); Ariz. R. Crim. P. 17.2 (e)], no such warning is required with respect to a plea of guilty to capital convictions as the Supreme Court must review all death sentences. A.R.S. §13-756 (A); Ariz. R. Crim. P. 31.2 (b). The mandate of §13-756 (A) requires the Supreme Court to review all death sentences to determine whether the trier of fact abused its discretion in finding aggravating circumstances and imposing a sentence of death. Robert L. Gottsfield is a graduate of State of University of N.Y. (Binghamton) (B.A. 1956), Cornell Law School, (J.D. 1960), and ASU (Master of Counseling, 1981). He clerked for the Supreme Court, Appellate Division, Third Department, in Albany N.Y. (1960-1962) and became a research staff attorney to the court (1963). He joined the Phoenix law firm of Rawlins, Ellis Burrus & Kiewit, in 1963, and eventually became a partner specializing in banking, bonds and commercial litigation. He was appointed to the Superior Court, Maricopa County in 1980 and is presently on the criminal bench. He is a frequent contributor to legal publications.
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