Argument analysis: Remorseless application of AEDPA?

Jordan Steiker

As in many recent cases applying limits on relief contained in the Anti-Terrorism and Effective Death Penalty Act’s text (AEDPA, 28 U.S.C. §2254(d)(1)), Wednesday’s argument in White v. Woodall involved mind-numbing hairsplitting. On the state’s side, Susan Lenz, an attorney in the office of Kentucky’s attorney general, sought to explain why Woodall’s entitlement to a “no-adverse-inference” instruction at the punishment phase of his capital trial was not “clearly established” at the time the Kentucky courts rejected his constitutional claim. Yes, the Supreme Court had held that the Fifth Amendment entitles a defendant to a no-adverse-inference instruction at trial (Carter v. Kentucky). Yes, the Court had announced that the right against self-incrimination applies in punishment as well as trial proceedings (Estelle v. Smith). And, yes, the Court had reversed a sentence where a trial court had actually made an adverse inference regarding a contested fact based on a defendant’s silence at sentencing (Mitchell v. United States). But here, Lenz argued, the defendant sought a no-adverse-inference instruction when he had conceded all of the facts concerning his death eligibility. Because the state had already satisfied its burden of proof, the defendant’s silence would not be used to make the state’s case.

Several Justices expressed skepticism. If Woodall was not entitled to a no-adverse-inference instruction, could the trial judge have expressly permitted jurors to hold his silence against him (as, indicating, for example, his lack of remorse)? After initially hesitating, and then prodded by Justice Scalia, Lenz responded affirmatively. Justice Kagan asked whether jurors should have been permitted to draw an adverse inference regarding the extent of the victim’s suffering (there was a factual dispute about when the victim died). Lenz again said yes, because the extent of suffering did not make the defendant death eligible (even though it might bear on whether jurors should sentence the defendant to death). During the remainder of Lenz’s argument (and again on the defendant’s side), the Court seemed particularly concerned about the issue of remorse. The Court had left open in Mitchell whether a defendant’s silence could be used against him in cases applying the federal sentencing guidelines, where acceptance of responsibility authorizes a downward departure. Given this explicit reservation regarding the Fifth Amendment’s application to sentencing, how could Woodall claim that the right to be free of such an adverse inference (much less an affirmative right to a no-adverse-inference instruction) was “clearly established” so as to permit habeas relief?

Laurence Komp, arguing on behalf of Woodall, faced several questions from Justice Alito that sought to illustrate the complications of prohibiting adverse inferences from a defendant’s silence when the defendant bears the burden of proof. Justice Alito suggested it would confuse jurors to tell them that “the fact that the defendant didn’t put on any mitigating evidence can’t prejudice him in any way” when the defense is in charge of presenting mitigation. Komp argued that the instruction would prevent jurors from treating Woodall’s silence as aggravating, because Kentucky permits consideration of non-statutory aggravators. Part of the confusion during the argument concerned the role of remorse in capital sentencing. If remorselessness is aggravating, then a defendant should not be punished for his silence by jurors inferring his lack of remorse; but if remorse is mitigating, and the defendant bears the burden of establishing its presence, it seems odd to say that a defendant should not be prejudiced from his failure to establish his remorse. In this respect, Mitchell’s reservation regarding the application of the Fifth Amendment to the federal sentencing guidelines might be inapposite, because remorse had only a “mitigating” aspect in that context. The Court’s decisions provide a compelling case against punishing a defendant for his silence – in the sense of imputing remorselessness and treating it as aggravating – even if jurors could reasonably conclude no remorse in the “mitigating” sense from the very same silence.

One of the confusing technical aspects of the case was whether the requested no-adverse-inference instruction was too broad, because it disclaimed any prejudicial inference from Woodall’s failure to testify. Given Mitchell, which left open whether silence could be used adversely on the question of remorse (in the federal sentencing context), was it “clearly established” that Woodall was entitled to such a blanket protection from adverse inferences? Justice Breyer sought to avoid this problem by looking at the requested instruction in light of the actual trial. Justice Breyer seemed to invite Komp to assert that the issue of remorse was not at issue at trial, so that the instruction would have prevented only other sorts of adverse inferences. Even with Justice Scalia’s intervention (interjecting that Justice Breyer was “trying to help you”), Komp wanted to argue that remorse was at issue at trial. What Komp struggled at many points to say – but which the Justices did not fully understand or embrace – was that the absence of remorse has an aggravating dimension in capital trials, and that the Court’s comments about remorse in the non-capital, federal sentencing context should not control.

Ultimately, the oral argument seemed to shed little light. Counsel for both sides seemed unable to persuade the Court of a route to decision. The state’s insistence that jurors are perfectly free to punish defendants for their silence once they have crossed the threshold of death eligibility seems inconsistent with the spirit (if not the letter) of Estelle v. Smith. The defense’s inability to explain why Mitchell’s reservation regarding remorse did not preclude a finding of “clearly established” law left the Court – including Justices sympathetic to the defense position – struggling for a rationale for affirmance. As with many recent AEDPA cases, the final opinion might tell us less about the underlying constitutional values – the right against self-incrimination in capital sentencing – than about the breadth (or narrowness) of AEDPA’s limitation on relief embodied in Section 2254(d)(1).